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Immigrant & Refugee Appellate Center, LLC | www.irac.net U.S. Department of Justice Executive Office for Immigration

U.S. Department of Justice

Executive Office for Immigration Review

Board ofImmigration Appeals Qffice ofthe Clerk

Kessler, Bridget Phillips Brooklyn Defender Services 180 Livingston Street, Ste. 300 Brooklyn, NY 11201

Name: DARWIN HAYNES, SEAN TERRY

5 /07 Leesburg Pike, Suite 2000 Falls Church. Virginia 22041

DHS/ICE Office of Chief Counsel - NYD 201 Varick, Rm. 1130 New York, NY 10014

A 036-574-645

Date of this notice: 12/2/2016

Enclosed is a copy of the Board's decision and order in the above-referenced case.

Sincerely,

bOYutL Cl1/VL)

Enclosure

Panel Members:

Pauley. Roger Geller. Joan B Greer, Anne J.

Donna Carr

Chief Clerk

Roger Geller. Joan B Greer, Anne J. Donna Carr Chief Clerk Userteam: Docket For more unpublished

Userteam: Docket

For more unpublished BIA decisions, visit www.irac.net/unpublished/index/

Cite as: Sean Terry Darwin Haynes, A036 574 645 (BIA Dec. 2, 2016)

BIA decisions, visit www.irac.net/unpublished/index/ Cite as: Sean Terry Darwin Haynes, A036 574 645 (BIA Dec. 2,

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Immigrant & Refugee Appellate Center, LLC | www.irac.net U.S. Department of Justice Executive Office for Immigration

U.S. Department of Justice

Executive Office for Immigration Review

Board ofImmigration Appeals Qffice ofthe Clerk

DARWIN HAYNES, SEAN TERRY

A036-574-645

c/o Hudson County Jail 30-35 S. Hackensack Ave Kearny, NJ 07032

Name: DARWIN HAYNES, SEAN TERRY

5107 leesburg Pike, Suite 2000 Fa/Js Church. Virginia 22041

OHS/ICE Office of Chief Counsel - NYD 201 Varick, Rm. 1130 New York, NY 10014

A 036-574-645

Date of this notice: 12/2/2016

Enclosed is a copy of the Board's decision in the above-referenced case. This copy is being provided to you as a courtesy. Your attorney or representative has been served with this decision pursuant to 8 C.F.R. § 1292.S(a). If the attached decision orders that you be removed from the United States or affirms an Immigration Judge's decision ordering that you be removed, any petition for review of the attached decision must be filed with and received by the appropriate court of appeals within 30 days of the date of the decision.

Sincerely,

Donna Carr
Donna Carr

Enclosure

Panel Members:

Pauley, Roger Geller, Joan B Greer, Anne J.

Chief Clerk

Pauley, Roger Geller, Joan B Greer, Anne J. Chief Clerk Userteam: Cite as: Sean Terry Darwin

Userteam:

Cite as: Sean Terry Darwin Haynes, A036 574 645 (BIA Dec. 2, 2016)

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I
I

U.S. Department of Justice

f;xecutiw, Office for Immigration Review

Falls•Church, Virginia 22041

Decision ofthe Board of Immigration Appeals

File: A036 574 645 -New York, NY Date: DEC-· 2 2016 In re: SEAN TERRY
File:
A036 574 645 -New York, NY
Date:
DEC-· 2 2016
In re: SEAN TERRY DARWIN HAYNES a.k.a. Sean Moseley
2 2016 In re: SEAN TERRY DARWIN HAYNES a.k.a. Sean Moseley IN REMOVAL PROCEEDINGS APPEAL ON

IN REMOVAL PROCEEDINGS

APPEAL

ON BEHALF OF RESPONDENT:

CHARGE:

Bridget P. Kessler, Esquire

Notice:

Sec.

237(a)(2)(E)(ii), I&N Act [8 U.S.C. § 1227(a)(2)(E)(ii)] - Violated court protective order (withdrawn)

Lodged: Sec.

237(a)(2)(A)(ii), I&N Act [8 U.S.C. § 1227(a)(2)(A)(ii)] - Convicted of two or more crimes involving moral turpitude

 

Sec.

237(a)(2)(A)(iii), l&N Act [8 U.S.C. § 1227(a)(2)(A)(iii)] - Convicted of aggravated felony under section 101(a)(43)(F), I&N Act [8 U.S.C. § l 101(a)(43)(F)] - Crime of violence

Sec.

237(a)(2)(A)(iii), I&N Act [8 U.S.C. § 1227(a)(2)(A)(iii)] - Convicted of aggravated felony under section 101(a)(43)(U), I&N Act [8 U.S.C. § 110 l (a)(43)(U)] - Attempt or conspiracy

APPLICATION: Termination

- Attempt or conspiracy APPLICATION: Termination The respondent appeals from an Immigration Judge's
- Attempt or conspiracy APPLICATION: Termination The respondent appeals from an Immigration Judge's

The respondent appeals from an Immigration Judge's October 28, 2015, decision ordering him removed from the United States. The appeal will be sustained and the removal proceedings will be terminated.

The respondent, a native and citizen of Barbados and a lawful permanent resident of the United States, has two convictions that are pertinent here: (1) in 2008, for attempted assault in the second degree in violation of sections 110 and 120.05(3) of the New York Penal Law; and (2) in 2014, for obstructing governmental administration in the second degree in violation of section 195.05 of the New York Penal Law.

According to the Immigration Judge, the respondent's 2008 conviction renders him removable as an alien convicted of an "aggravated felony," see section 237(a)(2)(A)(iii) of the Immigration and Nationality Act, 8 U.S.C. § 1227(a)(2)(A)(iii), while his 2008 and 2014 convictions, taken together, render him removable as an alien convicted of multiple crimes

Cite as: Sean Terry Darwin Haynes, A036 574 645 (BIA Dec. 2, 2016)

Immigrant & Refugee Appellate Center, LLC | www.irac.net

Immigrant & Refugee Appellate Center, LLC | www.irac.net A036 574 645 involving moral turpitude ("CIMT"), see

A036 574 645

involving moral turpitude ("CIMT"), see section 237(a)(2)(A)(ii) of the Act. 1 The respondent challenges those determinations, which we review de novo. See 8 C.F.R. § 1003.l (d)(3)(ii).

The respondent's main appellate argument is that his 2008 conviction under sections 110 and 120.05(3) of the New York Penal Law cannot be an aggravated felony or a CIMT because the offense of conviction-Le., attempted assault in the second degree-is a "legally impossible" crime under People v. Campbell, 532 N.E.2d 86 (N.Y. 1988) (Respondent's Brief at 10-19). That argument is supported by the controlling precedents of the United States Court of Appeals for the Second Circuit, as well as by persuasive authority from other circuits. See United States v. Moreno, 821 F.3d 223, 230 (2d Cir. 2016); Gill v. INS, 420 F.3d 82, 84 (2d Cir. 2005); see also Dale v. Holder, 610 F.3d 294, 302 (5th Cir. 2010); Knapik v. Ashcroft, 384 F.3d 84, 91-92 (3d Cir. 2004). As the respondent's 2008 conviction cannot support either removal charge as a matter of Second Circuit law, we will sustain his appeal, dismiss the removal charges, and terminate the removal proceedings. 2

ORDER:

The appeal is sustained, the Immigration Judge's decision is vacated, and the

removal proceedings are terminated.

is vacated, and the removal proceedings are terminated. FORTHE BOARD 1 The respondent was initially charged
FORTHE BOARD
FORTHE BOARD

1 The respondent was initially charged with removability for having violated a domestic violence protection order (Exh. 1). See section 237(a)(2)(E)(ii) of the Act. In April 2015, however, the aforementioned aggravated felony and multiple-CIMT charges were lodged "in lieu of' that original charge (Exh. 4). Accordingly, we have no occasion to address whether the respondent is removable under section 237(a)(2)(E)(ii) of the Act.

2 The respondent's 2014 conviction for obstructing governmental administration in the second degree does not, standing alone, support any removal charge.

2

Cite as: Sean Terry Darwin Haynes, A036 574 645 (BIA Dec. 2, 2016)

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& Refugee Appellate Center, LLC | www.irac.net ' ., UNITED STATES DEPARTMENT OF JUSTICE EXECUTIVE OFFICE

UNITED STATES DEPARTMENT OF JUSTICE EXECUTIVE OFFICE FOR IMMIGRATION REVIEW UNITED STATES IMMIGRATION COURT 201 VARICK STREET NEW YORK, NEW YORK

File No.: A036-574-645

In the Matter of: DARWIN HAYNES, Sean Terry a.k.a. Sean T. Moseley The Respondent.
In the Matter of:
DARWIN HAYNES, Sean Terry
a.k.a. Sean T. Moseley
The Respondent.

REMOVAL PROCEEDINGS

CHARGES:

Section 237(a)(2)(A)(ii) of the Immigration and Nationality Act ("INA") (Convicted of two CIMTs not arising out of a single scheme)

(Convicted of two CIMTs not arising out of a single scheme) Section 237(a)(2)(A)(iii) of the INA

Section 237(a)(2)(A)(iii) of the INA (Convicted of a "crime of violence" (18 U.S.C. Section 16) aggravated felony as defmed by INA Section 10l(a)(43)(F) for which the term of imprisonment was at least one year)

for which the term of imprisonment was at least one year) Section 237(a)(2)(A)(iii) of the INA

Section 237(a)(2)(A)(iii) of the INA (Convicted of an aggravated felony as defmed by INA Section 10l(a)(43)(U), an attempt or conspiracy to commit a crime of violence (18 U.S.C. Section 16) for which a term of imprisonment was at least one year)

APPLICATION:

8 C.F.R. § 1239.2(c) 8 C.F.R. § 1239.2(c)

ON BEHALF OF THE RESPONDENT

Ruben Loyo, Esq. Brooklyn Defender Services 177 Livingston St., i h Floor Brooklyn, NY 11201

Motion to Terminate Proceedings Motion to Dismiss DHS's Supplemental Charge Dated May 22, 201S

ON BEHALF OF DBS

Kamephis Perez, Esq. Assistant Chief Counsel 201 Varick Street, Room 1130 New York, NY 10014

DECISION AND ORDER OF THE IMMIGRATION JUDGE

I. PROCEDURAL HISTORY

Sean Terry Darwin Haynes ("the Respondent") is a native and citizen ofBarbados. (Ex. 1). He entered the United States ("U.S.") on January 21, 1980 at New York, NY as a lawful

ofBarbados. (Ex. 1). He entered the United States ("U.S.") on January 21, 1980 at New York,

1

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I
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& Refugee Appellate Center, LLC | www.irac.net I • p�anent resident ("LPR"). (Exs. 1; 2, Tab
& Refugee Appellate Center, LLC | www.irac.net I • p�anent resident ("LPR"). (Exs. 1; 2, Tab

p�anent resident ("LPR"). (Exs. 1; 2, Tab A). On July 14, 2008, he pled guilty to Attempted Assault in the Second Degree, in violation of New York Penal Law ("NYPL") §§ 110-120.05 and was sentenced to one year imprisonment. (Ex. 3, Tab E, p. 33); see also Respondent's Motion ("Resp. Mt.") (Ex. 5). On December 18, 2014, he pied guilty to Obstructing Governmental Administration in the Second Degree, in violation of NYPL § 195.05 and received 1 year of conditional discharge and an order of protection for five years. (Ex. 3, Tab F, p. 44, 48); see Resp. Mt.

On March 4, 2015, DHS personally served the Respondent with an NTA, charging him with removability pursuant to INA § 237(a)(2)(E)(ii), as having been convicted ofbeing enjoined by a protection order and violating it through conduct such as credible threats of violence, repeated harassment, or bodily injury to the person or persons for whom the protection order was issued. (Ex. 1).

On April 28, 2015, OHS filed an 1-261, which was submitted in lieu of the NTA and replaced its allegations and charges entirely, charging him with removability pursuant to INA § 237(a)(2)(A)(ii) as an alien, who after admission, was convicted of two crimes involving moral turpitude ("CIMT") not arising out of a single scheme of criminal misconduct and INA § 237(a)(2)(A)(iii) as having been convicted of an aggravated felony as defined in INA § I 01 (a)(43)(F), a "crime of violence" as defined by 18 U.S.C. § 16. (Ex. 4). During a hearing that same day, the Respondent, through counsel, admitted factual allegations one through three and five through seven, denied factual allegation four, and denied both charges of removability. The Court did not make a determination regarding the fourth factual allegation or the charges of removability at that time, but accepted the Respondent's request for an adjournment to prepare briefs for an impending motion to terminate Proceedings. Respondent's Hearing ("Resp. Hmg."), (Apr. 28, 2015).

On May 8, 2015, the Respondent filed a motion to terminate proceedings, alleging that the government failed to meet its burden of establishing the charges of removability. He first contends that he did not plead to a specific subsection of NYPL §§ 110-120.05 and specifically did not plead to subsection (3). Second, he contends that even if the Court finds that the plea was covered by subsection (3) that a conviction under NYPL §§ 110-120.05(3) is neither a CIMT nor a "crime of violence" because the statute does not contain a coherent mens rea element, and it has been determined to be a legally impossible crime according to the New York Court of Appeals. See Resp. Mt. p. 5-7 (citing People v. Campbell, 72 N.Y.2d 602 (N.Y. 1988)). He also argues that for immigration purposes, "no mental state can be discerned" from a conviction for a legally impossible crime, and thus, a guilty plea to such a crime like that of a plea to NYPL §§ 110-120.05(3) cannot satisfy either the CIMT or aggravated felony charges. See id. p. 9 (citing Gill v. INS, 420 F.3d 82, 91 (2d. Cir. 2005)). Further, he alleges that his conviction under NYPL § 195.05 for obstructing governmental administration is also not a CIMT because it was not accomplished through "deceit, graft, trickery, or dishonest means" as required by the BIA to make such an offense morally turpitudinous, the statute is missing elements of intentional violence or other aggravating factors, and New York case law has demonstrated that the statute is broad and does not require a false statement, physical assault or harm. See id. p. 10-11.

that the statute is broad and does not require a false statement, physical assault or harm.

2

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' . .�.'':···· · ' }Ip On May 22, 2015, OHS filed an opposition to the

On May 22, 2015, OHS filed an opposition to the Respondent's motion to tenninate, in conjunction with a second 1-261, adding a new charge of removability under INA § 237(a)(2)(A)(iii} as having been convicted of an aggravated felony as defined in INA § 10I(a)(43)(U), an attempt or conspiracy to commit a "crime of violence" (defined in 18 U.S.C. § 16) for which the term of imprisonment was at least one year. (Exs. 6; 7). On June 8, 2015, the Respondent filed a motion to Dismiss DHS's supplemental charged filed on May 22, 2015, in conjunction with a Letter-Brief in response to DHS's reply memorandum in opposition to Respondent's motion to terminate. (Bxs. 8; 9).

This decision addresses the issue of the Respondent's removability pursuant to INA §§ 237(a)(2)(A)(ii) and 237(a)(2)(A)(iii) as defined in both INA §§ 10l(a)(43)(F) and 10I(a)(43)(U). For the reasons outlined below, the Court finds that OHS has met its burden to establish his removability by clear and convincing evidence. Thus, the Respondent's motion to dismiss DHS's supplemental charge under INA §237(a)(2)(A)(iii) as defined in INA §101(a)(43)(U) and his motion to terminate proceedings will therefore be denied, and the charges ofremovability will be sustained.

II. LEGAL STANDARDS & ANALYSIS

A. Legal Framework

OHS bears the burden of establishing by clear and convincing evidence that an alien who has been admitted to the U.S. is removable as charged. See INA § 240(c)(3)(A); 8 C.F.R. § 1240.8(a). The Respondent has been charged with removability pursuant to INA § 237 (a)(2)(A)(ii) for having been convicted of two CIMTs not arising out of a single scheme of criminal conduct. He also has two charges of removability under INA § 237(a)(2)(A)(iii), for an aggravated felony as defined in INA § 10 l (a)(43)(F) as a "crime of violence" (as defined by 18 U.S.C. §16), and for an aggravated felony as defined in INA §I01(a)(43)(U) as an attempt or conspiracy to commit a "crime of violence" under 18 U.S.C. §16. Both aggravated felony charges require a term of impris.onment for at least one year. In order to support these charges, OHS cites to Respondent's convictions for Attempted Assault in the Second Degree, in violation of NYPL §§ 110-120.05, and Obstructing Governmental Administration in the Second Degree, in violation of NYPL § 195.05.

1.

CIMTs

An alien who at any time after admission is convicted of two or more crimes involving moral turpitude ("CIMT") not arising out of a single scheme of criminal misconduct, regardless of whether confined and regardless of whether the convictions were in a single trial, is removable. INA § 237(a)(2)(A)(ii).

The INA does not define the tenn "CIMT." The term ''moral turpitude" generally refers to conduct which is inherently base, vile, or depraved, and contrary to the accepted rules of morality and the duties owed between persons, or the duties owed to society in general. Matter of Torres-Varela, 23 I&N Dec. 78 , 83 (BIA 2001); Matter of Tran, 21 I&N Dec. 291, 292-93 (BIA 1996); Matter of Short, 20 l&N Dec. 136, I 39 (BIA 1989). Because "[i]t is in the intent

3

Dec. 291, 292-93 (BIA 1996); Matter of Short, 20 l&N Dec. 136, I 39 (BIA 1989).

Immigrant & Refugee Appellate Center, LLC | www.irac.net

Immigrant & Refugee Appellate Center, LLC | www.irac.net that moral turpitude inheres," the focus of the
Immigrant & Refugee Appellate Center, LLC | www.irac.net that moral turpitude inheres," the focus of the

that moral turpitude inheres," the focus of the analysis is generally "on the mental state reflected" in the statute. Efstathiadis v. Holder, 752 F.3d 591, 595 (2d Cir. 2014) (citing Gill v. INS. 420 F.3d p. 89; Mendez v. Mukasey. 547 F.3d 345, 347 (2d Cir. 2008) ("Whether a crime is one involving moral turpitude depends on the offender's evil intent or corruption of the mind.") (internal quotation marks omitted)). Moral turpitude requires ''reprehensible conduct and a culpable mental state." Matter of Hernandez, 26 I&N Dec. 397, 398 (BIA 2014) (citing Matter

of Louissaint, 24 I&N Dec. 754, 756-57 (BIA 2009), which stated that a "crime involving moral

turpitude involves reprehensible conduct committed with some degree ofscienter, specific intent, deliberateness, willfulness, or recklessness").

intent, deliberateness, willfulness, or recklessness"). Further, if an offense involves moral turpitude, then an

Further, if an offense involves moral turpitude, then an attempt or conspiracy to commit that offense also involves moral turpitude. U.S. ex rel. Meyer v. Day, 54 F.2d 336, 337 (2d Cir. 1931); Matter of Vo, 25 I&N Dec. 426 (BIA 2011) (holding that where the substantive offense underlying an alien's conviction for an attempt is a crime involving moral turpitude, the alien is considered to have been convicted of a crime involving moral turpitude for purposes of INA § 237(a)(2)(A), even though that section makes no reference to attempt offenses). However, a crime does not involve moral turpitude if "no mental state can be clearly discerned from" a conviction that requires an attempt to commit a crime of recklessness , such as Attempted Assault in the Second Degree, in violation of NYPL §§ I 10-120.05(4). Gill v. INS, 420 F.3d p. 91-92.

In determining whether an individual's state conviction constitutes a CIMT within the meaning of INA § 237(a)(2)(A)(ii), the Court begins by employing a categorical approach whereby the Court examines "whether [the offense] categorically fits within the definition of a CIMT." See Efstathiadis, 752 F.3d p. 595 (citing Moncrieffe v. Holder, 133 S. Ct. 1678, 1684 (2013)). The categorical approach focuses on the "minimal conduct criminalized by the state statute" that is necessary to sustain a conviction under that statute. Moncrieffe, 133 S.Ct. p. 1685 (conviction "rested upon [nothing] more than the least of th[e] acts" criminalized) (citing Johnson v. United States, 559 U.S. 133, 137 (2010)); see Gertsenshteyn v. Mukasey, 544 F.3d

137, 143 (2d Cir. 2008) (citing Dalton v. Ashcroft, 257 F.3d 200, 204 (2d Cir. 2001). Under the categorical approach, the Court must look only to the statutory elements without considering the facts underlying the conviction, therefore rending actual conduct "irrelevant" for this analysis. Moncrieffe, 133 S.Ct. p. 1684 (citing Gonzales v. Duenas-Alvarez, 549 U.S. 183, 186 (2007);

see Gertsenshteyn, 544 F.3d p. 143; Martinez v. Mukasey, 551 F.3d 113, 119 (2d Cir. 2008).

When evaluating divisibility, an Immigration Judge must follow the law of the circuit court of appeals in whose jurisdiction he or she sits. Matter of Chairez-Castrejon (II), 26 I&N

Dec. 478 (BIA 2015). In the Second Circuit, divisibility analysis is governed by Descamps." 1 Flores v. Holder, 779 F.3d 159 (2d Cir. 2015). If a statute is divisible, the categorical approach will necessarily be inconclusive, and the court must proceed to the modified categorical approach. A criminal statute is divisible, so as to warrant a modified categorical inquiry, only if (1) it lists multiple discrete offenses as enumerated alternatives or defines a single offense by reference to disjunctive sets of "elements," more than one combination of which could support a

a respondent before an IJ fails

to assert that Descamps prohibits the use of the modified categorical approach� the BIA may properly apply the

Prabhudial v. Holder, 780 F.3d 553 (2d Cir.

2015).

doctrine of waiver if that respondent later asserts Descamps applies.

1

See Descamps v. United States, 13 3 S. Ct. 22 76, 228 1- 83 (20 13 ). However, where

4

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Immigrant & Refugee Appellate Center, LLC | www.irac.net conviction; and (2) at least one (but not
Immigrant & Refugee Appellate Center, LLC | www.irac.net conviction; and (2) at least one (but not

conviction; and (2) at least one (but not all) of those listed offenses or combinations of disjunctive elements is a categorical match to the relevant generic standard. Descamps, 133 S.

Ct. p. 2281-83; see Matter of Chairez-Castrejon (Q, 26 I&N Dec. 349, 353 (BIA 2014) (rejecting Matter of Lanfennan, 25 I&N Dec. 721 (BIA 2012) "to the extent that it is inconsistent

in

with

Descamps").

[the Board's]

understanding

of the

Supreme

Court's

approach

to

divisibility

To detennine whether an assault-type crime involves moral turpitude, the court must analyze ''both the state of mind and the level of hann required to complete the offense." Matter of Solon, 24 I &N Dec. 239, 242 (BIA 2007). "[A] s the level of conscious behavior decreases, i.e., from intentional to reckless conduct, more serious harm is required in order to find that the crime involves moral turpitude." Id. A lesser degree of culpable mental state and resulting hann is required for offense that "necessarily involve[] aggravating factors[,]" such as "a deadly weapon[,]" or ''bodily harm upon a person whom society views as deserving of special protection, such as a child, a domestic partner, or a peace officer." Matter of Sanudo, 23 I&N Dec. 968, 971-72 (BIA 2006). Thus, assaults requiring "intentional infliction of serious bodily injury on another" involve moral turpitude. Id. p. 971 (emphasis in original). In New York, an assault that requires both specific intent and physical injury is a crime involving moral turpitude. See Solon, 24 l&N Dec. p. 243(finding that assault in the third degree in violation of NYPL § 120.00(1 ), which requires both specific intent and physical injury, is a CIMT).

both specific intent and physical injury, is a CIMT). A crime "involving [an] assault against a

A crime "involving [an] assault against a peace officer, which results in bodily harm to the victim and which involves knowledge by the offender that his force is directed to an officer

Matter of

Da nesh, 19 I&N Dec. 669, 670 (B IA 19 88 ); but see Zaranska v. U.S . Dep't of Homeland Sec., 400 F. Supp. 2d 500, 513-21 (E.D.N.Y. 2005) (conviction under NYPL § 120.05(3) was not a CIMT under the predecessor statute effective through October 31, 2006) (citing People v. Rojas, 97 N.Y.2d 32, 40 (2001) ("a defendant's intent to injure is irrelevant to the crime of assault in the second degree under Penal Law §120.05(3)); People v. Campbell, 72 N.Y.2d p. 604 ("Under the plain wording of this subdivision it is evident that a defendant may be convicted even though the injury caused is unintended or accidental. The only proviso is that the injury must occur while the defendant is acting with the intention of preventing the police officer [] from performing a lawful duty.").

who is perfonning an official duty, constitutes a crime involving moral turpitude."

a. Attempted Assault in the Second Degree, NYPL §§ 110-120.05

Here, the categorical approach is inconclusive because the Respondent's statute of conviction is divisible. He pied guilty to violating NYPL §§ 110-120.05, Attempted Assault in the Second Degree. (Ex. 3, Tab E, p. 33). His certificate of disposition does not indicate whether he pled guilty to a specific subsection of the statute. NYPL §§" 110-120.05 is divided eleven different subsections, which are multiple discrete offenses listed as enumerated alternatives. Courts have found that certain subsections are categorically CIMTs while other subsections do not categorically involve moral turpitude. For example, subsection (1) was been found to be a CIMT in Singh v. DHS (526 F.3d 72, 78-80 (2d. Cir. 2008)), whereas in Gill v. INS, attempted reckless assault under subsection (4) is not a CIMT because attempted recklessness is legally incoherent. 420 F.3d p. 91. Accordingly, NYPL §§ 11 0-120.05 is a divisible statute and requires

is legally incoherent. 420 F.3d p. 91. Accordingly, NYPL §§ 11 0-120.05 is a divisible statute

5

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Immigrant & Refugee Appellate Center, LLC | www.irac.net a modified categorical analysis because the statute lists
Immigrant & Refugee Appellate Center, LLC | www.irac.net a modified categorical analysis because the statute lists

a modified categorical analysis because the statute lists multiple discrete offenses as enumerated alternatives and at least one (but not all) of those listed offenses is a categorical match to the relevant CIMT standard. Descamps, 133 S. Ct. p. 2281 -83.

i. Modified Categorical Approach

The "modified categorical approach" allows a court to look beyond the statute, to the record of conviction, for the limited purpose of determining whether the alien's conviction, not the alien's conduct, falls under the part of the statute that would render the alien removable. See generally, Descamps; Dickson v. Ashcroft, 346 F. 3d 44, 48-49 (2d Cir. 2003) (citing Kuh ali v. Reno, 266 F.3d 93, 106-07 (2d Cir. 2001)); Matter of Vargas-Sarmiento, 23 I&N Dec. 651 , 654 (BIA 2004), petition for review denied by Vargas-Sarmiento v. U.S. Dep't of Justice, 448 F.3d 159, 162 (2d Cir. 2006). Because the modified categorical approach is a means to implement the categorical approach, it is an elements-based inquiry, not a facts-based search. Moncrieffe, 133 S. Ct. p. 1684 (under the categorical approach, ''we examine what the state conviction necessarily involved, not the facts underlying the case"); see Descamps, 1 33 S. Ct. p. 2292-93.

the case"); see Descamps, 1 33 S. Ct. p. 2292-93. Under the modified categorical approach the
the case"); see Descamps, 1 33 S. Ct. p. 2292-93. Under the modified categorical approach the

Under the modified categorical approach the Court's inquiry is limited to the ''record of conviction. Moncrieffe, 133 S. Ct. p. 1 684-85 (a Court may resort to the modified categorical approach by examining the record ofconviction only to "determine which particular offense the noncitizen was convicted of'). The record of conviction includes ''the charging document and jury instructions, or in the case of a guilty plea, the plea agreement, plea colloquy, or 'some comparable judicial record' of the factual basis for the plea."' Id. p. 1685 (quoting Nijhawan v. Holder, 557 U.S. 29, 35 (2009)); see INA § 240(c)(3)(B)(i)-(vii). The Court may also review the combined evidentiary weight of documents, not just the weight of each individual document, submitted as part of the record of conviction in determining if the conviction has been proven by clear and convincing evidence. See Singh, 526 F.3d p. 78-80 (clear and convincing evidence established that petitioner was convicted of assault under NYPL §1 20.05(1) by upholding the · admission of a conditions of probation document, a certificate of disposition, and a post­ conviction rap sheet which individually would be insufficient but in combination proved the conviction).

be insufficient but in combination proved the conviction). A Respondent cannot be removed for an offense
be insufficient but in combination proved the conviction). A Respondent cannot be removed for an offense

A Respondent cannot be removed for an offense if he "did not admit to, was not charged with, and was not required to plead to" conduct that would render him removable. Wala v. Mukasey, 511 F.3d 102, 109 (2d. Cir. 2007). "[A] petitioner necessarily pleads facts when, for example, he actually admits specific facts in his plea colloquy or comparable judicial record that establish he violated a divisible statute in [a] manner that satisfies the criteria of the pertinent removability statute." Id. p. 108.

of the pertinent removability statute." Id. p. 108. Here, the Court examined the certificate of disposition
of the pertinent removability statute." Id. p. 108. Here, the Court examined the certificate of disposition

Here, the Court examined the certificate of disposition and the plea minutes for the Respondent's conviction pursuant to NYPL §§ 1 1 0-1 20.05 in addition to his rap sheet, all of which were submitted by OHS. (Exs. 3, Tab E; 2, Tab D, p. 14-16); see Nijhawan 557 U.S. p. 35. First, the certification of disposition states that the Respondent pled guilty to Attempted Assault in the Second Degree under NYPL §§ 110-120.05, but it does not specify a specific subsection of the statute. (Ex. 3, Tab E, p. 33). The certificate categorizes his conviction as a Class E felony and states that he was sentenced of one year of imprisonment. Id. Further, it is

6

his conviction as a Class E felony and states that he was sentenced of one year

Immigrant & Refugee Appellate Center, LLC | www.irac.net

Immigrant & Refugee Appellate Center, LLC | www.irac.net dated April 8, 2011 and is signed by
Immigrant & Refugee Appellate Center, LLC | www.irac.net dated April 8, 2011 and is signed by

dated April 8, 2011 and is signed by the court clerk. Id. The Respondent concedes that the certificate of disposition is proof that the he pied to Attempted Assault in the Second Degree, but denied that he pied guilty to subsection (3). Resp. Hmg., (Apr. 28, 2015). OHS argues that the only subsection that the Respondent could have pied guilty to under the statute was subsection (3) based on the charges listed in his rap sheet that were satisfied as a result of his plea and his statements in the plea minutes. (Exs. 2, Tab D, p. 1 6; 3, Tab G).

in the plea minutes. (Exs. 2, Tab D, p. 1 6; 3, Tab G). The Court

The Court finds DHS's argument persuasive. While the Court recognizes the lack of specificity in the certificate of disposition, the record of conviction demonstrates that the

Respondent was convicted under subsection (3) of NYPL § 120.05. According to his post­ conviction rap sheet, he was charged under Count 1 with two counts of Assault in the Second Degree: With the Intent to Cause Physical Injury to Officer/Fireman/EMT under NYPL § 120.05(3), both of which were Class D felonies. (Ex. 2, Tab D, p. 14-16). In the plea minutes, his criminal attorney entered "a plea of guilty of Count 1 of the Indictment to Attempted Assault in the Second Degree in full satisfaction of all the accounts therein." (Ex. 3, Tab E, p. 37). Further, in the plea minutes, the Respondent pied guilty to "attempt[ing] to prevent a police officer from

perform ing a lawful

attempt [ing] to cause physical inj ury to such police officer." (Ex .

3, Tab E, p. 38). He specifically admitted to being involved in an altercation with a lieutenant and a police officer regarding his unwillingness to leave the precinct bathroom, which resulted in the Respondent punching the lieutenant in the face and a physical struggle with the other officer. (Ex. 3, Tab E, p. 41 -42). Thus, the evidence proffered by DHS proves by clear and convincing

duty and

evidence that he pled guilty to NYPL §§ 1 10-120.05(3).

ii. NYPL §§ 110-120. 05(3) is categorically a CIMT

Assault in the Second Degree under subsection (3) has four elements: (1) an intentional act; (2) to prevent or obstruct a police officer, peace officers, firefighters, and other emergency personnel; (3) from performing a lawful duty; and (4) an injury to the police officer, peace officers, firefighters, and other emergency personnel that occurs as a result of the offender's actions. NY PL § 120. 05(3) (Nov. 2006). In Danesh, the BIA found that a crime "involving [an] assault against a peace officer, which results in bodily harm to the victim and which involves knowledge by the offender that his force is directed to an officer who is performing an official duty, constitutes a crime involving moral turpi tude." 19 l&N Dec. 669, 670 (B IA 198 8); but see Zaransk� 400 F. Supp. 2d p. 513-21 (conviction under NYPL § 120.05(3) was not a CIMT under the predecessor statute effective through October 31, 2006) (citing People v. Rojas, 97 N.Y.2d p. 40 ("a defendant's intent to injure is irrelevant to the crime of assault in the second degree under Penal Law §120.05(3)); People v. Campbell, 72 N.Y.2d p. 604 ("Under the plain wording ofthis subdivision it is evident that a defendant may be convicted even though the injury caused is unintended or accidental. The only proviso is that the injury must occur while the defendant is acting with the intention of preventing the police officer [] from perfonning a lawful duty.").

the police officer [] from perfonning a lawful duty."). NYPL § 120.05(3) categorically matches the scienter
the police officer [] from perfonning a lawful duty."). NYPL § 120.05(3) categorically matches the scienter

NYPL § 120.05(3) categorically matches the scienter and reprehensible conduct requirements of a CIMT. First, the New York statute clearly has a scienter element as it requires the offender to act with intent when preventing or obstructing a police officer from performing his or her lawful duty. NYPL § 120.05(3) (Nov. 2006); see Solon, 24 I&N Dec. p. 242. Second,

7

Immigrant & Refugee Appellate Center, LLC | www.irac.net

Immigrant & Refugee Appellate Center, LLC | www.irac.net pre;enting a police officer from performing a lawful
Immigrant & Refugee Appellate Center, LLC | www.irac.net pre;enting a police officer from performing a lawful

pre;enting a police officer from performing a lawful duty is a violation of one's duty to society and is likely to be deemed reprehensible conduct, especially in light of circumstances that result in injury to the police officer. See Sanudo, 23 l&N Dec. p. 971 -72. Therefore, the Respondent's conviction for Assault in the Second Degree in violation ofNYPL § 120.05(3) is a CIMT. Further, because an attempt to commit a CIMT also qualifies as a CIMT, his conviction for Attempted Assault in the Second Degree in violation ofNYPL §§ 110-120.05(3) is a CIMT. See Matter ofVo (BIA 2011).

b. Obstructing Governmental Administration in the Second Degree, NYPL § 195.05

The Respondent pled guilty to violating NYPL § 195.05, Obstructing Governmental Administration in the Second Degree. (Ex. 3, Tab F, p. 44). A person is guilty of Obstructing Governmental Administration in the Second Degree when he:

intentionally obstructs, impairs or perverts the administration of law or other governmental function or prevents or attempts to prevent a public servant from performing an official function, by means of intimid ation, physical force or in terference, or by means of any independently unlawful act, or by means of interfering, whether or not physical force is involved, with radio, telephone, television or other telecommW1ications systems owned or operated by the state, or a county, city, town, village, fire district or emergency medical service or by means of releasing a dangerous animal under circumstances evincing the actor's intent that the animal obstruct governmental administration.

NYPL § 195.05. (emphasis added). The issue before the Court is whether the state statute for this crime criminalizes conduct that does not constitute a CIMT.

i.

Divisibility

Applying the categorical analysis framework of CIMTs di scussed above, NYPL §

is divisible. First, NYPL § 195.05 lists two discrete offenses as enumerated alternatives. Namely, "intentionally obstructs, impairs or perverts the administration of law or other governmental function" and "prevents or attempts to prevent a public servant from performing an official function., , NYPL § 1 95.05. Second, one discrete offense is a categorical match to the generic CIMT standard while the other discrete offense is not a categorical match. "[I]ntentionally obstructs, impairs or perverts the administration of law or other governmental function" is not a categorical match because it lacks the requisite reprehensible conduct that is the hallmark of CIMTs. However, "[Intentionally] prevent[ing] or attempt[ing] to prevent a public servant from perfonning an official function" is a CIMT because it has the requisite scienter and involves reprehensible conduct. It is the Court's view that intentionally preventing a "public servant from performing an official function" is contrary to the accepted rules of morality and the duties owed to society in general. See Matter of Torres-Varel� 23 I&N Dec. p. 83; In Re Lopez-Meza, 22 I. & N. Dec. 1188, 1193 (BIA 1 999) (citing 6 Charles Gordon, et al., Immigration Law and Procedure § 71.05(l)(d) (rev. ed. 1999), and cases cited therein, which note that "[c]rimes involving acts ofbaseness or depravity have been found to be crimes

195. 05

8

Immigrant & Refugee Appellate Center, LLC | www.irac.net

Immigrant & Refugee Appellate Center, LLC | www.irac.net r41· ii inv�lving moral turpitude even though they
Immigrant & Refugee Appellate Center, LLC | www.irac.net r41· ii inv�lving moral turpitude even though they

r41·

ii

inv�lving moral turpitude even though they have no element of fraud and, in some cases, no explicit element ofevil intent (e.g., murder, rape, robbery, kidnap[pJing, voluntary manslaughter, some involuntary manslaughter offenses, aggravated assaults, mayhem, theft offenses, spousal abuse, child abuse, and incest). Therefore, a modified categorical approach much be applied to determine whether the Respondent's conviction under NYPL § 195.05 qualifies as a CIMT.

conviction under NYPL § 195.05 qualifies as a CIMT. ii. Mo dified Categorical Approach In applying

ii. Mo dified Categorical Approach

In applying the modified categorical approach as outlined above, the Court examined the certificate of disposition, charging document for the Respondent's conviction pursuant to NYPL § 195.05, and his rap sheet, all of which were submitted by DHS. (Exs. 3, Tab E; 2. Tab D); see Nijhawan 557 U.S. p. 35. First, the certificate of disposition states that he pied guilty to NYPL § 195.05 and was sentenced to one year of conditional discharge and an order of protection for five years. (Ex. 3, Tab F, p. 44). The document is dated April 16, 2015 and is signed by the court clerk. The Respondent conceded his conviction when he pied to the 1-261 dated April 28, 201 5, but denied that the conviction amounted to a CIMT. Resp� Hmg., (Apr. 28, 2015).

Second, the charging document includes a sworn statement from police officer Michael Wigdzinski as to the facts of incident and alleges that he committed six offenses that are either felonies or misdemeanors. Officer Wigdzinski 's statement is based on hearsay statements he received from the complainant and two other officers who were present at the scene. The portion of the charging document that is based on Officer Wigdzinski's conversations with the police officers who were present at the scene is excepted from the hearsay rule. New York Civil Procedure Law and Rules (''NYCPLR") Rule 4518 includes a hearsay exception for statements made under a business duty obligation, including where a police officer is under a duty to report to another officer. Lindsay v. Acad. Broadway Corp., 198 A.D.2d 641, 642, 603 N.Y.S.2d 622, 623 (1 993) ("The police report is hearsay but, contrary to plaintiffs contention, it is admissible under the business record exception of NYCPLR Rule 4518(a) inasmuch as the witnesses who gave the statements were police officers at the scene with a duty to report their observations to the recording officer."). Accordingly, this portion of the charging document is based on non­ hearsay and is considered an information. NYCPL § 170.65(1) (a misdemeanor complaint is converted into an information when it is supplemented by a "supporting deposition" and other documents that "taken together satisfy the requirements for a valid information").

Looking to the charging document, it is clear that the Respondent's conviction is under the second discrete offense of NYPL § 195. 05, "[Intentionally] prevents or attempts to prevent a public servant from performing an official function." While trying to remove the Respondent from the situation and place handcuffs on him, he punched a police sergeant "on his face and ripped the shirt" of the sergeant. In addition, he elbowed another police officer who was trying to assist the police sergeant to handcuff the Respondent. Both police officers suffered substantial pain and physical injuries as a result of this altercation. (Ex. 3, Tab E, p. 49-50). Accordingly, he specifically pied to the second discrete offense under NYPL § 195.05 which, as explained above, is a CIMT.

In sum, the Court finds that the crimes of Attempted Assault in the Second Degree under NYPL §§ 110-120.05(3) and Obstructing Governmental Administration in the Second Degree

9

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Immigrant & Refugee Appellate Center, LLC | www.irac.net under NYPL § 195.05 constitute CIMTs . Thus,
Immigrant & Refugee Appellate Center, LLC | www.irac.net under NYPL § 195.05 constitute CIMTs . Thus,

under NYPL § 195.05 constitute CIMTs . Thus, OHS has met its burden to prove that the Respondent is removable because it has established that he has been convicted of at least two

CIMTs not arising out of a single scheme of criminal conduct. INA

§ 237(a)(2)(A)(ii).

2. Aggravated Felony "Crime of Violence," INA § 10l(a)(43)(F)

Felony "Crime of Violence," INA § 10l(a)(43)(F) An alien convi cted of an aggravated fe lony

An alien convi cted of an aggravated fe lony any time after admission is removable. INA § 237(a)(2)(A)(iii). DHS bears the burden to establish by clear and convincing evidence that an alien who has been admitted to the U.S. is removable as charged. See INA § 240(c)(3)(A); 8 C.F.R. § 1240.8(a).

charged. See INA § 240(c)(3)(A); 8 C.F.R. § 1240.8(a). In determining whether a conviction constitutes an

In determining whether a conviction constitutes an aggravated fe lony, the Court begins with a categorical approach whereby it examines whether ''the state statute defining the crime of conviction" fits within the "generic" federal definition of a corresponding aggravated felony. Moncrieffe, 133 S. Ct. p. 1684 (citing Duenas-Alvarez, 549 U.S. p. 186 ); see 101(a)(43)(F). The state offense is a categorical match only if a conviction of that offense '"necessarily' involved . facts equating to [the] generic [federal offense]." Id. p. 1684 (citing Shepard v. United States, 544 U.S. 13, 24 (2005)). The categorical approach focuses on the ''minimal conduct criminalized by the state statute'' that is necessary to sustain a conviction under that statute. Id. p. 1685 (conviction "rested upon [nothing] more than the least of th[e] acts" criminalized) (citing Johnson v. United States, 559 U.S. 133, 137 (2010)); see Gertsenshteyn, 544 F.3d p. 143 (citing Dalton v. Ashcroft, 257 F.3d p. 204). Under the categorical approach, the Court must look only

Id. p. 1684

to the statutory elements without considering the facts underlying the conviction.

(citing Gonzales, 549 U.S. p. 186); see id.; Martinez v. Mukasey, 551 F.3d 113, 119 (2d Cir.

2008).

Martinez v. Mukasey, 551 F.3d 113, 119 (2d Cir. 2008). Under the categorical approach, the Court
Martinez v. Mukasey, 551 F.3d 113, 119 (2d Cir. 2008). Under the categorical approach, the Court

Under the categorical approach, the Court must look only to the statutory elements without considering the facts underlying the conviction. Moncrieffe, 133 S. Ct. p. 1684 (citing Gonzales, 549 U.S. p. 186); see Gertsenshteyn, 544 F.3d p. 143; Martinez v. Mukasey, 551 F.3d at 119. To fai l the categorical test, there must exist "a realistic probability, not a theoretical possibility, that the State would apply its statute to conduct" that would .constitute an aggravated felony. Moncrieffe, 133 S. Ct. p. 1685 (citing Duenas-Alvarez, 549 U.S. at 193); see Matter of Ferreiri!, 26 I&N Dec. 415, 419 (2d Cir. 2014) (instructing that the "'realistic probability test' is part of the initial inquiry that an IJ must undertake when applying the categorical approach"); Matter of Chairez-Castrejon (I), 26 l&N Dec. p. 357 (finding no realistic probability that a state statute would be applied in a manner constituting a removable offense where the respondent identified no decision where anyone had been so prosecuted).

The definition of the term "aggravated felony" includes a "crime of violence" (as defined in 18 U.S.C. § 16, but not including a purely political offense) for which the term of imprisonment is at least one year. INA § 10l (a)(43)(F). A "crime of violence" is defined as:

"(a) an offense that has as an element the use, attempted use, or threatened use of physical force against the person or property of another, or (b) any other offense that is a felony and that, by its nature, involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense." 18 U.S.C. § 16; Dos Santos v. Gonzal es, 440 F.3d 81 (2d Cir. 2006); Matter of Alcantar, 20 I&N Dec. 801 (BIA 1 994). Sections 16(a) and

10

v. Gonzal es, 440 F.3d 81 (2d Cir. 2006); Matter of Alcantar, 20 I&N Dec. 801

Immigrant & Refugee Appellate Center, LLC | www.irac.net

Immigrant & Refugee Appellate Center, LLC | www.irac.net (b) both involve the use of ''physical force
Immigrant & Refugee Appellate Center, LLC | www.irac.net (b) both involve the use of ''physical force

(b) both involve the use of ''physical force against , , another's person or property, which requires "a higher mens rea than the merely accidental or negligent conduct." See Leocal v. Ashcroft, 543 U.S. 1, 2 (2004).

To determine whether a State statute is a categorical match to 18 U.S.C. § 16(a), the Court must consider whether the ''use, attempted use, or threatened use of physical force against the person or property of another'' is an element of the State offense. Francisco-Alonzo, 26 I&N

physical force against the

Dec. p. 596-97. Further, the key phrase within §16(a), "the use

person or property of another," suggests "a higher degree of intent than negligent or merely accidental conduct." Leocal, 543 U.S. p. 9-10 (citing United States v. Trinidad-Aquino. 259 F.3d

p. 1 145; Bazan Reyes v. INS. 256 F.3d p. 609.).

of

The language of 18 U.S.C. § 16(b) sweeps more broadly than § 16(a) and includes

offenses that "naturally involve a person acting in disregard of the risk that physical force might be used against another in committing an offense." Leocal, 543 U.S. p. 2. The Second Circuit has concluded that a crime of violence under section 16(b) must present a substantial risk of the intentional use of force. Vargas-Sanniento, 448 F.3d p. 172 (citing Jobson v. Ashcroft, 326 F.3d

p.

Sanniento, 448 F.3d p. 169-170). 2 The BIA has held that in determining whether a statute is a crime of violence under 18 U.S.C. § 16(b), the proper inquiry is whether the conduct encompassed by the elements of the State offense present a substantial risk that physical force may be used in the course of committing the offense in the "ordinary case." Francisco-Alonzo, 26 l&N Dec. p. 599-600 (rejecting Moncrieffe's "least culpable conduct" analysis in the context ofdetermining crimes of violence under § 16(b)).

374 (2d Cir. 2003); see also Morris v. Holder, 676 F.3d 309, 314 (2d Cir 2012) (citing Vargas­

The term "physical force" in 18 U. S.C. § 16 is defined as "power, violence, or pressure directed against a person or thing." Morris, 676 F.3d at 314 (citing Vargas-Sarmiento, 448 F.3d

p.169). The force referenced in 18 U.S.C. § 16(b) need not be "violent force." Morris, 676 F.3d p. 314-15 (citing Vargas-Sarmiento, 448 F.3d p. 169). "Physical force" has been broadly interpreted and includes acts such as poisoning food that the defendant intends someone to eat, because the act of poisoning "intentionally avails h[im]self of the physical force exerted by

When the underlying crime

poison on a human body."

requires that the defendant intend to inflict serious physical injury, there is inherently a substantial risk that the perpetrator may intentionally use physical force to cause the injury because the infliction of a serious physical injury is "likely to meet vigorous resistance from a victim." Morris, 676 F.3d p. 315 (quoting Vargas-Sarmiento, 448 F.3d p. 173-74).

Vargas-Sarmiento, 448 F.3d p. 174.

The Court previously determined that the Respondent could only have pied guilty to

NYPL §§ 110-120.05(3) and not any other subsection of the statute. Accordingly, the Court will apply the categorical approach to determine whether NYPL §§ 110-120.05(3) constitutes an aggravated felony under INA § 101 (a)(43)(F). A person is guilty of Assault in the Second

Degree if "[w]ith intent to prevent a[ ] police officer

causes

physical injury to such [] police officer." (emphasis added). NYPL § 120.05(3) (Nov. 2006). An

attempt of this underlying crime occurs when a person "with intent to commit a crime, he

from

performing a lawful duty

he

2 In Jobson, the Second Circuit stated with regard to § l 6(b) that "an unintentional accident caused by recklessness cannot properly be said to involve a substantial risk that a defendant will use physical force." 326 F.3d p. 373-74.

11

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Immigrant & Refugee Appellate Center, LLC | www.irac.net engages in conduct which tends to effect the
Immigrant & Refugee Appellate Center, LLC | www.irac.net engages in conduct which tends to effect the

engages in conduct which tends to effect the commission of such crime" (emphasis added). NYPL § 110 (2015). For the reasons that follow, the Court finds that NYPL §§ 110- 120.05(3) is categorically a crime ofviolence and aggravated felony.

Neither the Second Circuit nor the BIA have directly ruled that Assault in the Second Degree under NYPL §§ 120.05(3), or its attempt crime under NYPL § 110, is a "crime of violence," although other subsections of that statute have been addressed by these courts. See Morris, 676 F.3d 309 (held that a conviction for assault in the second degree, in violation of NYPL § 120.05(2), is a "crime of violence" as defined in 18 U.S.C. § 1 6(b) because it sweeps

more broadly than § 16(a)); Persaud v. McElroy, 225 F. Supp. 2d 420 (S.D.N.Y. 2002) (held that

a conviction for assault in the second degree, in violation of NYPL §120.05(6) does not

constitute a conviction of an "aggravated felony" under 8 U.S.C. § 110l (a)(43)(F) and 8 U.S.C.

§ 1227(a)(2)(A)(iii)). Here, the Court finds that NYPL § 120.05(3) does not constitute a "crime

of violence" pursuant to 18 U.S.C. § 16(a). While the statute is characterized by the intent to interfere with, inter alia, a police officer, this intentional mens rea does not necessarily extend to the resulting harm to the officer. In other words, the statute does not require a criminal defendant to intend the hann he causes. Accordingly, NYPL § 120.05(3) is not a crime of violence pursuant to 18 U.S.C. § 16(a) because the use of intentional force is not an element of the statute. See NYPL § 120.05(3). However, NYPL § 120.05(3) is categorically a crime of violence under 18 U.S.C. § 16(b).

To constitute a crime of violence pursuant to § 16(b), a statute must "inherently present []

'a substantial risk' that the perpetrator 'may' use physical force in the commission of the crime."

Vargas-Sarmiento, 448 F.3d p. 169. The proper inquiry is whether the conduct encompassed by the elements of the State offense present a substantial risk that physical force may be used in the course of committing the offense in the "ordinary case." Matter of Francisco-Alonzo, 26 I&N Dec. 594, 599-600 (BIA 2015); see Leocal, 543 U.S. p. 10 (stating that analysis under 18 U. S.C.

§ 16(b) is focused not on ''the possibility that harm will result from a person's conduct, but to the

risk that the use of physical force against another might be required in committing a crime"). The Second Circuit held in Canada v. Gonzales, 448 F.3d 560 (2d Cir. 2006), that a conviction for assaulting a peace officer 3 , in violation ofConnecticut General Statutes ("COS") §53a-167c(a)( l) was an aggravated felony "crime of violence" because the assault on a peace officer involved a substantial risk of the use of physical force. A year later, in Blake v. Gonzales, 481 F.3d 152 (2d Cr. 2007), the Second Circuit found that a conviction under Massachusetts General Law (M.G.L.) for assault and battery against a police officer constituted an aggravated

battery against a police officer constituted an aggravated 3 "A person is guilty of assault of

3 "A person is guilty of assault of [a] public safety [officer]

officer

when, with intent to prevent a reasonably identifiable

is acting in the performance of his or her

" Canada v. Gonzales, 448 F.3d 560, 564 (2d Cir.

from performing his or her duties, and while such

officer

or an organized local police department,

, a conservation officer or special conservation officer,

officer

duties, (l) such person causes physical injury to such

2006) {citing CGS § 53a-1 67c(a)(l)). "Peace officer is defined elsewhere in the CGS as: a member ofthe Division

of State Police

Justice, a state marshal while exercising authority granted under any provision of the general statutes, a judicial

marshal

enforcement duties, a special policemen appointed under section 29-18, 29- 18a or 29-19, an adult probation officer, an official of the Department of Correction authorized by the Commissioner ofCorrection to make arrests in a correctional institution or facility, any investigator in the investigations unit of the State Treasurer or any special agent ofthe federal government authorized to enforce the provisions of Title 21 of the United States Code." Id. p. 564-65 (citing COS § 53a-3(9)).

12

a chief inspector or inspector in the Division of Criminal

a constable who performs criminal law

Immigrant & Refugee Appellate Center, LLC | www.irac.net

Immigrant & Refugee Appellate Center, LLC | www.irac.net felony "crime of violence" because it required either
Immigrant & Refugee Appellate Center, LLC | www.irac.net felony "crime of violence" because it required either

felony "crime of violence" because it required either an intentional use of force upon the other person of another or the intentional commission of a wanton or reckless act against a policy officer carrying out his or her official duties causing physical or bodily injury, which involved a substantial risk that physical force against the person of another would be used in commission of the offense.

The elements in NYPL §120. 05(3 ) are directly analogous to the Connecticut and Massachusetts statutes discussed in Canada and Blake. First, the statutes cover harm to a

substantially similar grouping of public safety and government officers. Compare NYPL § 1 20.05(3) with COS § 53a-3 (9), and M.G.L. c. 265 , § l 3D. Second, the intent to prevent or obstruct, inter alia, a police officer from performing a lawful duty and injury to, inter alia, the police officer results from the substantial risk of force used by the offender in the commission of

the offense. See NYPL §§ 110-120.05(3 ) (Nov.

2006); COS § 53 a-167c(a)( l}; M.G.L. c. 265, §

l3D.

The Court is persuaded that the conduct encompassed by the elements ofNYPL

§ 1 20.05(3) in the course of committing the offense in the "ordinary case" categorically constitutes a ''crime of violence" under 18 U.S.C. §16(b) because it inherently involves a

. "substantial risk that physical force

may

be used" in the commission of the crime (i.e. to

prevent, inter alia, a police officer from performing a lawful duty). 18 U.S.C. §16(b); see NYPL §§110-120.05(3) (Nov. 2006). Therefore, the Respondent's conviction under the same is an

aggravated felony.

The Court is persuaded that the minimum conduct necessary to sustain a conviction under NYPL § § 110-120.05 (3) categorically constitutes a "crime of viol ence" under 18 U.S.C. §16(b)

because it inherently involves a ''substantial risk that physical force

commission of the crime (i.e. to prevent a police officer from performing a lawful duty). 18

U.S.C. §16(b); see NYPL §§110-120.05(3) (Nov. 2006).Therefore, the Respondent's conviction under the same is an aggravated felony.

may be used" in the

the same is an aggravated felony. may be used" in the 3. Aggravated Felony, INA §

3. Aggravated Felony, INA § 10l(a)(43)(U)

An attempt or conspiracy to commit any offense described in INA § 10l (a)(43) constitutes an "aggravated felony." INA § 10 l (a)(43)(U). "[S] ubsection U does not use the word 'attempt' to mean conviction of an offense formally denominated as an attempt, but instead means conduct that satisfies a generally accepted definition of an attempted offense." Pierre v. Holder, 588 F.3d 767, 775 (2d Cir. 2009) (citing Ming Lam Sui, 250 F.3d 1 13, 115-16 (2d Cir. 2001). Although an attempted aggravated felony under subsection U can be charged alongside its completed aggravated felony counterpart, a charge solely under another subsection does not necessarily include an attempt or conspiracy to commit an offense under subsection U. Pierre, 588 F.3d p. 775.

an offense under subsection U. Pierre, 588 F.3d p. 775. The Court finds that since Attempted

The Court finds that since Attempted Assault in the Second Degree, in violation of NYPL §§ 110-120.05(3), categorically constitutes an aggravated felony under INA § 101(a)(43)(F), it therefore also categorically constitutes an aggravated felony under INA §101 (a)(43)(U), as an

13

§ 101(a)(43)(F), it therefore also categorically constitutes an aggravated felony under INA §101 (a)(43)(U), as an

Immigrant & Refugee Appellate Center, LLC | www.irac.net

Immigrant & Refugee Appellate Center, LLC | www.irac.net ' attempt to commit "a crime of violence
Immigrant & Refugee Appellate Center, LLC | www.irac.net ' attempt to commit "a crime of violence

' attempt to commit "a crime of violence

y ear."

for

which the term of imprisonment [is] at least one

Accordingly, after a careful review of the evidence, the following Order is entered:

ORDER

of the evidence, the following Order is entered: ORDER IT IS HEREBY ORDERED that the Respondent's

IT IS HEREBY ORDERED that the Respondent's motion to tenninate proceedings 1s DENIED.

Order is entered: ORDER IT IS HEREBY ORDERED that the Respondent's motion to tenninate proceedings 1s
Date
Date

14