Cite as 25 I&N Dec. 721 (BIA 2012) Interim Decision #3744
721
Matter of Roderick B. LANFERMAN, Respondent
Decided March 9, 2012
U.S. Department of Justice
Executive Office for Immigration Review
Board of Immigration Appeals
A criminal statute is divisible, regardless of its structure, if, based on the elements of the
offense, some but not all violations of the statute give rise to grounds for removal
or ineligibility for relief.
FOR RESPONDENT: Adam Paskoff, Esquire, New York, New York
FOR THE DEPARTMENT OF HOMELAND SECURITY: Steven J. Connelly, Assistant
Chief Counsel
BEFORE: Board Panel: COLE, PAULEY, and WENDTLAND, Board Members.
PAULEY, Board Member:
This case was last before us on June 22, 2006, when we dismissed the
respondent’s appeal from the Immigration Judge’s decision of March 18, 2005,
ordering him removed from the United States under section 237(a)(2)(C)
of the Immigration and Nationality Act, 8 U.S.C. § 1227(a)(2)(C) (2000),
as an alien convicted of a firearms offense. The factual basis for the finding
of removability was the respondent’s 1996 conviction for menacing in the
second degree in violation of section 120.14 of the New York Penal Law.
On August 5, 2009, the United States Court of Appeals for the Second Circuit
remanded the case for us “to decide the initial issue of whether Section 120.14
of the New York Penal Law is divisible under the modified categorical
approach.” Lanferman v. Bd. of Immigration Appeals, 576 F.3d 84, 86 (2d Cir.
2009). Upon consideration of this issue, we again conclude that the
respondent is removable as charged and will dismiss his appeal.
I. FACTUAL AND PROCEDURAL HISTORY
The respondent is a native and citizen of Guyana who was admitted
to the United States as a lawful permanent resident on December 24, 1990.
On August 8, 1996, he was convicted in the Criminal Court of the City
of New York, County of Bronx, New York, of menacing in the second degreeCite as 25 I&N Dec. 721 (BIA 2012) Interim Decision #3744
722
in violation of section 120.14 of the New York Penal Law. Based on this
conviction, the respondent was charged under section 237(a)(2)(C) of the Act,
and the Immigration Judge found him removable in a decision dated
May 29, 2003. The respondent applied for cancellation of removal under
section 240A(a) of the Act, 8 U.S.C. § 1229b(a) (2000), which was denied
by the Immigration Judge in the exercise of his discretion. Following the
respondent’s appeal, we remanded the record in a decision dated September 7,
2004, which resulted in the Immigration Judge’s decision of March 18, 2005.
In our June 22, 2006, decision, we dismissed the respondent’s appeal, finding
that he was removable and that his application for cancellation of removal was
properly denied as a matter of discretion.
II. ANALYSIS
The Second Circuit has identified three analytical approaches to potentially
divisible statutes. Lanferman v. Bd. of Immigration Appeals, 576 F.3d
at 90-92 (citing Dulal-Whiteway v. U.S. Dep’t of Homeland Sec., 501 F.3d 116
(2d Cir. 2007), abrogated on other grounds by Nijhawan v. Holder, 557 U.S.
29 (2009), and James v. Mukasey, 522 F.3d 250 (2d Cir. 2008)). Under the
first approach, divisibility would be permitted “where the alternative means
of committing a violation are enumerated as discrete alternatives, either by use
of disjunctives or subsections.” Id. at 90. Under the second approach,
divisibility would be permitted “where the statute of conviction is phrased
in the disjunctive or divided into subsections, or where the immigration statute
invites inquiry into the facts of the underlying conviction at issue.” Id.
at 91-92 (citing Singh v. Ashcroft, 383 F.3d 144, 148 (3d Cir. 2004)).
Under the third approach, divisibility would be permitted in “all statutes
of conviction . . . regardless of their structure, so long as they contain
an element or elements that could be satisfied either by removable
or non-removable conduct.” Id. at 90 (quoting Dulal-Whiteway v. U.S. Dep’t
of Homeland Sec., 501 F.3d at 128) (internal quotation marks omitted).
The issue before us, under the terms of the remand, is which of these
approaches is most suitable for application in the immigration context. For the
following reasons, we adopt the third approach.
A. Background on Divisibility
The question of a criminal statute’s divisibility arises in the application
of the categorical approach to determine whether an offense prohibited by the
statute in question comes within a specific ground of removability. See Taylor
v. United States, 495 U.S. 575 (1990); see also Shepard v. United States, 544
U.S. 13 (2005). In its original form, the categorical approach limited theCite as 25 I&N Dec. 721 (BIA 2012) Interim Decision #3744
1 The Supreme Court has stated that in the context of a nonjury conviction, the Board, the
Immigration Judges, and the Federal courts may consider, as evidence in the record
(continued…)
723
analysis of the alien’s removability to the criminal statute of conviction, with
no consideration of the underlying conduct on which the conviction may have
been based. See Taylor v. United States, 495 U.S. at 600; see also Matter
of Babaisakov, 24 I&N Dec. 306, 310-11 (BIA 2007). However, the Court
subsequently made clear in Shepard that where a statute was effectively
divisible, documents that are part of the record of conviction, such as the
charging instrument, jury instructions, or, in the case of a plea, the plea
transcript, could be used to demonstrate that the defendant was convicted
of a particular type of violation. This inquiry has come to be known as the
modified categorical approach.
The principal purpose served by the categorical approach is to limit the
inquiry to what crime the offender was necessarily convicted of (as opposed
to the offender’s underlying conduct) and, thus, to avoid ad hoc mini-trials
on whether an offender’s conduct was more or less culpable than what his
actual conviction required. See Taylor v. United States, 495 U.S. at 600-02;
Garcia v. Holder, 638 F.3d 511, 517 (6th Cir. 2011); United States v. Piccolo,
441 F.3d 1084, 1087 (9th Cir. 2006). Originally, the categorical approach was
deemed to involve a purely abstract inquiry into the categorical nature of the
elements of a criminal statute. But recently the Supreme Court has engrafted
a threshold inquiry that requires an initial determination whether the
breadth of conduct covered by a criminal statute in its actual application
is such that there is a “realistic probability” that the statute would
be successfully employed to prosecute the conduct at issue. See Gonzales
v. Duenas-Alvarez, 549 U.S. 183, 193 (2007) (applying the “realistic
probability” standard to the categorical determination of an aggravated felony
in the immigration context); see also James v. United States, 550 U.S. 192,
208 (2007); Matter of Silva-Trevino, 24 I&N Dec. 687, 697-98 (A.G. 2008)
(applying the same threshold inquiry to determinations whether a conviction
is for a crime involving moral turpitude).
The circuit courts have not uniformly applied the modified categorical
approach in the immigration context. See, e.g., Conteh v. Gonzales, 461
F.3d 45, 54-57 (1st Cir. 2006). However, they all agree on one aspect
of the modified categorical approach, namely, that its functional purpose
is to determine when documents in an alien’s record of conviction may
be considered to ascertain if the crime at issue falls within the class of offenses
defined by the applicable provision of inadmissibility under section 212 of the
Act, 8 U.S.C. § 1182 (2006), or removability under section 237.1Cite as 25 I&N Dec. 721 (BIA 2012) Interim Decision #3744
(…continued)
of conviction, the “charging document,” the “terms of the plea agreement,” the “transcript
of colloquy between judge and defendant,” or “some comparable judicial record”
of information about the “factual basis for the plea.” Gonzales v. Duenas-Alvarez, 549 U.S.
at 187 (quoting Shepard v. United States, 544 U.S. at 26) (internal quotation marks omitted).
2 An element is a fact that, in a criminal prosecution, must be proved beyond a reasonable
doubt to convict or to impose an enhanced sentence. See, e.g., Apprendi v. New Jersey, 530
U.S. 466, 472 (2000); In re Winship, 397 U.S. 358, 361 (1970); Matter of Eslamizar,
23 I&N Dec. 684, 688 (BIA 2004).
724
The divisibility calculus, which is implicated by the modified categorical
approach, requires that we carefully examine the State or Federal law at issue
to understand how a particular offense is prosecuted—that is, what elements
must be shown beyond a reasonable doubt (including sentencing factors
in some instances). We view a criminal statute as divisible only if, based
on the elements of the offense, some but not all violations of the statute give
rise to grounds for removal or ineligibility for relief.2
See, e.g., Matter
of Vargas, 23 I&N Dec. 651, 654 (BIA 2004).
Sometimes this simply requires the adjudicator to look at the alien’s
criminal record to determine whether his crime “matches” the elements that
define the offense of removal, such as burglary in the aggravated felony
definition. At other times, the removal provision does not refer to a specific
offense like burglary with a settled generic definition but instead creates
an imprecise standard that must be compared to the elements of a State
or Federal offense. For example, section 101(a)(43)(F) of the Act, 8 U.S.C.
§ 101(a)(43)(F) (2006), defines the term aggravated felony to mean certain
“crimes of violence” under 18 U.S.C. § 16 (2006). In turn, § 16(b) defines
a crime of violence as a felony offense 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.”
Unlike a “burglary offense,” this “crime of violence” definition does not
contain discrete elements that are tied to specific facts. Rather, a crime
of violence is defined in probabilistic terms by reference to the level of “risk”
that inheres in the crime “by its nature.” When applied to this kind of Federal
standard, the categorical approach still focuses on the “elements” of the
alien’s crime in a sense, but it no longer contemplates a matching
of elements. Instead, the inquiry focuses more loosely on whether the
alien’s crime fits within a discrete category of offenses that would
ordinarily be expected to present the risk described in 18 U.S.C. § 16(b).
See, e.g., Chambers v. United States, 555 U.S. 122 (2009); Begay
v. United States, 553 U.S. 137 (2008); James v. United States, 550 U.S. at 208;
Van Don Nguyen v. Holder, 571 F.3d 524, 530 (6th Cir. 2009). SuchCite as 25 I&N Dec. 721 (BIA 2012) Interim Decision #3744
3 When examining the law of the prosecuting jurisdiction, it is paramount to understand
that the “elements” of an offense will not always be clearly set forth within the four corners
of a single criminal statute. The adjudicator therefore must look beyond the statutory
language to other parts of the law of the prosecuting jurisdiction. For example, many
statutes delineate crimes by using general terms—such as “controlled substance” or “deadly
weapon”—which can only be understood by looking to other definitional statutes,
or perhaps case law. Furthermore, courts sometimes put judicial “glosses” on statutory
terms, changing their meaning in subtle (or not so subtle) ways. See, e.g., People
v. Mansfield, 245 Cal. Rptr. 800, 802 (Cal. Ct. App. 1988) (holding that although section
242 of the California Penal Code defines “battery” to require “force or violence” against
another, “[t]he word ‘violence’ has no real significance”). Moreover, in a number
of jurisdictions, criminal statutes do not define offense elements at all, but instead leave that
task to the courts. See, e.g., Zimmerman v. Commonwealth, 585 S.E.2d 538, 539 (Va. 2003)
(“In this jurisdiction, we adhere to the common law definition of assault, there having been
no statutory change to the crime.”); State v. Byrd, 887 P.2d 396, 399 (Wash. 1995)
(“Because ‘assault’ is not defined in the statute, courts resort to the common law for
(continued…)
725
imprecise standards are subject to disagreement by reasonable minds and
therefore complicate the divisibility analysis.
B. First Approach
In the first formulation described by the Second Circuit, the modified
categorical approach may only be applied if certain structural or grammatical
statutory characteristics are present on the face of the statute of conviction,
such as the enumeration of a list of qualifying alternative elements in discrete
subsections or the separation of various means of committing the offense
within disjunctively divided words or phrases. The Fifth Circuit has followed
this formulation in several cases. See, e.g., Amouzadeh v. Winfrey, 467 F.3d
451, 455 (5th Cir. 2006); Larin-Ulloa v. Gonzales, 462 F.3d 456 (5th Cir.
2006). However, we find this methodology unnecessarily formulaic and
confining as regards the appropriate purposes to be served by the modified
categorical approach in the immigration context.
In our view, the structural design of a criminal statute is frequently
of limited relevance to how the statute is interpreted by the courts charged with
its application and thus is, at best, just a starting point from which a full
explication of the statute may be developed. Commonly, the breadth
of application of the statute is a function of the inclusiveness of its terms
or of how it has been interpreted within a larger statutory, decisional, and
common law framework by the courts of the controlling jurisdiction.3Cite as 25 I&N Dec. 721 (BIA 2012) Interim Decision #3744
(…continued)
definitions.”). In still other cases, elements can be found in mandatory sentencing
statutes or guidelines. See Apprendi v. New Jersey, 530 U.S. 466; see also
Matter of Martinez-Zapata, 24 I&N Dec. 424 (BIA 2007).
726
We agree that a statute containing discrete subsections or provisions phrased
in the disjunctive is divisible. See, e.g., Oouch v. U.S. Dep’t of Homeland
Sec., 633 F.3d 119, 122 (2d Cir. 2011) (acknowledging that it is settled law
in the Second Circuit that a statute drafted as discrete offenses in a disjunctive
list is divisible if one or more offenses in the list, but not all, are grounds for
removal). However, we find that such statutes fail to fully describe the
category of divisible statutes, given the variations in criminal laws from
jurisdiction to jurisdiction. Thus, we decline to adopt the first formulation set
forth by the Second Circuit.
C. Second Approach
The second of the divisibility approaches presented for our consideration
by the Second Circuit was developed by the Third Circuit in Singh v. Ashcroft,
383 F.3d 144. Under this formulation, the modified categorical approach
is applied when either (1) the statute of conviction is phrased in the
disjunctive or divided into subsections such that some variations of the crime
of conviction meet the requisites for removability under the immigration laws
and others do not, or (2) the relevant removability provision “invite[s] inquiry
into the facts underlying the conviction.” Id. at 161-62; see also Stubbs
v. Att’y Gen. of U.S., 452 F.3d 251, 254-55 (3d Cir. 2006).
The first prong of this approach is very like, if not identical to, the
structural approach proposed in the first formulation. The second prong
supplements the divisibility definition by looking, not to the statute
of conviction, but to whether the ground of removability “invites inquiry” into
the underlying facts. In Singh v. Ashcroft, 383 F.3d at 161, the Third Circuit
specifically identified the qualifier in section 101(a)(43)(M)(i) of the Act,
“in which the loss to the victim or victims exceeds $10,000,” as the
“prototypical example” of an enumerating statute that invites further factual
inquiry.
We do not believe that this second prong of the Third Circuit’s approach
involves a divisibility analysis. In actuality, the issue addressed by the second
prong is better defined as whether the categorical approach applies at all where
a ground of removability contains an aspect that must be established, but
which is not an element of the statute of conviction. An example of such
an inquiry is whether an offense involves fraud or deceit in which the lossCite as 25 I&N Dec. 721 (BIA 2012) Interim Decision #3744
4
In Nijhawan, the Court identified other aggravated felony provisions that contain
circumstance-specific aspects to which the categorical approach is inapplicable,
including section 101(a)(43)(K)(ii) of the Act, which provides that an aggravated felony
for transportation for the purpose of prostitution must be “committed for commercial
advantage.”
5 Numerous examples demonstrate the courts’ application of a modified categorical
approach to criminal statutes of varying structure and construction with little or no regard
(continued…)
727
to a victim exceeds $10,000 or more and therefore is an aggravated felony
under section 101(a)(43)(M)(i) of the Act. In its unanimous decision
in Nijhawan v. Holder, 557 U.S. 29 (2009), the Supreme Court held that
nonelement aspects of a removability ground, such as the $10,000 loss
provision, are not subject to the categorical approach. They are instead subject
to a “circumstance-specific” approach that allows inquiry into the facts
underlying the conviction without regard to the confines of the modified
categorical approach. See also Matter of Babaisakov, 24 I&N Dec. 306. Thus,
Nijhawan has cast considerable doubt upon the Third Circuit’s second prong
of its divisibility formulation.
Even disregarding that Nijhawan has fully resolved the question of the
applicability of the categorical approach in the particular context of the
$10,000 loss provision at issue there and in Singh,
4 we are not inclined
to adopt the Third Circuit’s unique approach. We do not regard the “invites
inquiry” standard as a useful one, since whether or not a statute contains
an “invitation” appears to be an inexact concept that manifests itself primarily
in the eye of the beholder. It is thus unclear to what statutes of conviction that
are not divided into subsections or phrased disjunctively, if any, the Third
Circuit would apply the “invites inquiry” formulation.
D. Third Approach
Under the Second Circuit’s third formulation, divisibility would
be permitted in “all statutes of conviction . . . regardless of their structure,
so long as they contain an element or elements that could be satisfied either
by removable or non-removable conduct.” Lanferman v. Bd. of Immigration
Appeals, 576 F.3d at 90 (quoting Dulal-Whiteway v. U.S. Dep’t of Homeland
Sec., 501 F.3d at 128) (internal quotation marks omitted). We conclude that
this broadest of the three formulations should be adopted in the immigration
context because it best serves the purposes undergirding the categorical
approach.
Many circuit courts have treated statutes as divisible regardless of their
structure.5 Dulal-Whiteway v. U.S. Dep’t of Homeland Sec., 501 F.3d at 128.Cite as 25 I&N Dec. 721 (BIA 2012) Interim Decision #3744
(…continued)
for the statute’s grammar or structure. See, e.g., United States v. Fife, 624 F.3d 441, 444-47
(7th Cir. 2010); United States v. Medina-Almaguer, 559 F.3d 420, 421-22 (6th Cir. 2009);
Suazo Perez v. Mukasey, 512 F.3d 1222, 1225-26 (9th Cir. 2008); Vargas v. Dep’t
of Homeland Sec., 451 F.3d 1105, 1108-09 (10th Cir. 2006); Jaggernauth v. U.S. Att’y Gen.,
432 F.3d 1346, 1354-55 (11th Cir. 2005); Soliman v. Gonzales, 419 F.3d 276, 284 (4th Cir.
2005); Emile v. INS, 244 F.3d 183, 187-89 (1st Cir. 2001); Vue v. INS, 92 F.3d 696, 699-700
(8th Cir. 1996); accord United States v. Llanos-Agostadero, 486 F.3d 1194, 1197 (11th Cir.
2007).
6
In the context of the predecessor statute to section 237(a)(2)(C) of the Act, we have found
divisibility where the alternative means of committing a firearms offense were not
enumerated as discrete alternatives in the State statute. See Matter of Pichardo, 21 I&N
Dec. 330, 333-34 (BIA 1996) (finding divisible a New York statute containing five
subdivisions, the first of which could, but did not necessarily, involve a firearms-related
possession violation); see also Matter of Madrigal, 21 I&N Dec. 323 (BIA 1996) (finding
divisible a New York statute containing five subdivisions, the third of which involved a
firearm, and the first of which could, but did not necessarily, involve a firearms conviction).
7 The Second Circuit has stated in dicta that it is not required to give deference to our
interpretation of State or Federal criminal statutes since the Board is not charged with the
(continued…)
728
This is consistent with our longstanding practice, because we have
traditionally applied divisibility analysis to all manner of statutes, regardless
of their structure. See, e.g., Matter of Sanudo, 23 I&N Dec. 968, 969, 972-73
(BIA 2006) (applying the modified categorical approach to a single-sentence
criminal battery statute that was not divided into discrete subsections);
see also Matter of Babaisakov, 24 I&N Dec. at 312 (“[O]ur published law
applies either a categorical or a divisibility analysis, where the actual elements
leading to conviction are the determining factor for removal charges hinging
on a conviction for a crime.”).6
Importantly, as the Second Circuit itself
recognized in Dulal-Whiteway, 501 F.3d at 128, this approach appears also
to reflect the understanding of the Supreme Court since, in both Taylor and
Shepard, the Court, “by proceeding to examine the individual’s record
of conviction, implicitly assumed what we now refer to as the statute’s
divisibility.”
Adopting the broadest of the three outlined approaches is also consistent
with the view we share with some courts of appeals that the categorical
approach itself need not be applied with the same rigor in the immigration
context as in the criminal arena, where it was developed. See Conteh
v. Gonzales, 461 F.3d at 55-56 (noting several differentiating factors between
the criminal and immigration contexts that warrant not applying the categorical
approach in the same manner); see also Ali v. Mukasey, 521 F.3d 737 (7th Cir.
2008).7
In that regard, we further note that the Second Circuit itself has takenCite as 25 I&N Dec. 721 (BIA 2012) Interim Decision #3744
(…continued)
administration of such statutes. Lanferman v. Bd. of Immigration Appeals, 576 F.3d at 88;
James v. Mukasey, 522 F.3d at 253-54, 256. However, in light of our determination that the
categorical approach, including the modified categorical approach, need not apply to the
same extent in immigration proceedings as it does in the criminal context, deference may
be due when the Board or the Attorney General seeks to apply a uniform divisibility
approach for immigration purposes. See generally Nat’l Cable & Telecomms. Ass’n
v. Brand X Internet Servs., 545 U.S. 967 (2005);see also Conteh v. Gonzales, 461 F.3d at 52
n.3 (noting that “the BIA’s choice of methodology [as to divisibility] might be regarded as
an interpretation of the INA and, thus, entitled to a degree of judicial deference”). We need
not decide here, however, whether we are obliged to follow the approaches in circuits, such
as the Third and Fifth, that may diverge from ours.
8 We decline to comment further on Aguila Montes de Oca because it has not yet been the
subject of significant application within the Ninth Circuit, nor has it been addressed by other
circuits. In any case, it is outside the purview of the remand in this case.
729
the position that the outcome of a categorical inquiry “may be different when
defining aggravated felonies in the immigration context than in the sentencing
context.” Martinez v. Mukasey, 551 F.3d 113, 118 (2d Cir. 2008); see also
Lopez v. Gonzales, 549 U.S. 47, 52 n.3 (2006) (noting the Second Circuit’s
bifurcated approach). In view of the court’s bifurcated approach to defining
the substance of certain aggravated felonies for purposes of immigration and
criminal law, it may well take a similar approach with respect to divisibility.
Therefore, even if the Second Circuit endorses a more restrictive approach
in the criminal law arena, our adoption of the broadest approach to divisibility
in interpreting the immigration laws may be appropriate.
A recent decision of the Ninth Circuit supports this broad approach
to divisibility. In United States v. Aguila-Montes de Oca, 655 F.3d 915 (9th
Cir. 2011) (en banc), the Ninth Circuit overruled prior precedents and held,
over a dissent, that a statute need not be divisible in order for the modified
categorical approach to be properly utilized. Rather, the court determined that
while divisible statutes always suffice to permit application of the modified
categorical approach, such an approach is also appropriate where the
finder of fact is shown to have necessarily found (for example, through
a plea colloquy) a fact or facts that generically satisfy the elements
of a species of offense (or, for immigration purposes, a ground of removability
or inadmissibility). Thus, the Ninth Circuit would not limit recourse to the
modified categorical approach to circumstances where a statute contained
discrete subsections or provisions.8
In light of the foregoing, we adopt the third, and most expansive, of the
three alternative divisibility approaches presented by the Second Circuit
in Lanferman.Cite as 25 I&N Dec. 721 (BIA 2012) Interim Decision #3744
9 The term “deadly weapon” was defined as “any loaded weapon from which a shot, readily
capable of producing death or other serious physical injury, may be discharged,
or a switchblade knife, gravity knife, pilum ballistic knife, metal knuckle knife, dagger,
billy, blackjack, or metal knuckles.” N.Y. Penal Law § 10.00(12) (McKinney 1996). The
term “dangerous instrument” was defined as “any instrument, article or substance, including
a ‘vehicle’ . . . , which, under the circumstances in which it is used, attempted to be used
or threatened to be used, is readily capable of causing death or other serious physical
injury.” N.Y. Penal Law § 10.00(13).
730
E. Application of the Divisibility Approach to the Respondent’s Case
Applying this divisibility approach, we conclude that the respondent
is removable under section 237(a)(2)(C) of the Act as an alien convicted
of a firearms offense based on his conviction for menacing in the second
degree in violation of section 120.14 of the New York Penal Law. When the
respondent committed this offense, section 120.14 provided as follows:
A person is guilty of menacing in the second degree when:
1. He or she intentionally places or attempts to place another person
in reasonable fear of physical injury, serious physical injury or death by displaying
a deadly weapon, dangerous instrument or what appears to be a pistol, revolver,
rifle, shotgun, machine gun or other firearm;9
or
2. He or she repeatedly follows a person or engages in a course of conduct
or repeatedly commits acts over a period of time intentionally placing or attempting
to place another person in reasonable fear of physical injury, serious physical injury
or death; or
3. He or she commits the crime of menacing in the third degree in violation
of that part of a duly served order of protection, or such order which the defendant
has actual knowledge of because he or she was present in court when such order
was issued, pursuant to article eight of the family court act or section 530.12 of the
criminal procedure law which directed the respondent or defendant to stay away
from the person or persons on whose behalf the order was issued.
The police complaint against the respondent specified that he was
alleged to have violated section 120.14(1) by placing his victim in reasonable
fear of injury or death by displaying and pointing a revolver at her.
See People v. Dreyden, 931 N.E. 2d 526 (Ct. App. N.Y. 2010) (indicating that
a valid police complaint is a permissible charging document under New York
law). During his plea colloquy, the respondent admitted that he committed the
offense of menacing in that he did “pull out a revolver and point the revolver
at the complainant . . . and menace her with that weapon.”
Based on the respondent’s conviction, the Immigration Judge found him
deportable under section 237(a)(2)(C) of the Act, which provides as follows:Cite as 25 I&N Dec. 721 (BIA 2012) Interim Decision #3744
10 We assume arguendo that the issue whether a weapon is a firearm for purposes of section
237(a)(2)(C) of the Act is not subject to the circumstance-specific approach set forth
in Nijhawan v. Holder, 557 U.S. 29. The Second Circuit observed in Lanferman v. Bd.
of Immigration Appeals, 576 F.3d at 89 n.3, that, in contrast to section 101(a)(43)(M)(i),
which was at issue in Nijhawan, section 237(a)(2)(C) “describes a generic crime, and does
not require the ‘particular circumstances’ analysis.” See also id. at 92 n.9 (stating that
section 237(a)(2)(C) “falls on the ‘generic crime’ side of the equation”). The Second Circuit
further observed that unlike section 101(a)(43)(M)(i), section 237(a)(2)(C) “does not
contain words such as ‘in which’ that would modify the offense so as to indicate that the
statute’s reference to a firearm is circumstance-specific.” Id. These observations are
supported by Board and circuit court decisions discussing whether certain weapons fall
within the Federal definition of a “firearm,” as required by section 237(a)(2)(C) of the Act.
See, e.g., Awad v. Gonzales, 494 F.3d 723, 727 (8th Cir. 2007); Matter of Mendez-Orellana,
25 I&N Dec. 254 (BIA 2010).
11 Section 237(a)(2)(C) of the Act is interpreted broadly. See Valerio-Ochoa v. INS, 241
F.3d 1092, 1095 (9th Cir. 2001) (“From a plain reading of [section 237(a)(2)(C) ], it is clear
that Congress intended to embrace the entire panoply of firearms offenses.”); Hall v. U.S.
INS, 167 F.3d 852, 855 (4th Cir. 1999) (“[The firearms statute’s] comprehensive list
of gerunds captures all varieties of conduct relating to firearms transactions. . . . This
wide-ranging text evinces an expansive purpose—to render deportable those aliens that
commit firearms offenses of any type.”).
731
Any alien who at any time after admission is convicted under any law
of purchasing, selling, offering for sale, exchanging, using, owning, possessing,
or carrying, or of attempting or conspiring to purchase, sell, offer for sale,
exchange, use, own, possess, or carry, any weapon,10 part, or accessory which
is a firearm or destructive device (as defined in section 921(a) of title 18,
United States Code) in violation of any law is deportable.11
In our decision of June 22, 2006, we affirmed that removability finding,
concluding “that the plea colloquy and the criminal complaint are sufficient
to support the Immigration Judge’s finding that the respondent was convicted
under section 120.14(1) of the New York Penal Law and is removable under
section 237(a)(2)(C) of the Act.”
Section 120.14 of the New York Penal Law is not a pure firearms statute
that outright punishes possessing or carrying a firearm. Indeed, only the first
subsection may involve firearms, as contemplated by section 237(a)(2)(C)
of the Act. The second subsection is commonly referred to as an anti-stalking
provision, and the third involves the violation of a protection order.
While there is no dispute that the second and third subsections do not
“encompass convictions of crimes for which possessing or carrying firearms
is an element,” there is likewise no dispute that the respondent was convicted
under section 120.14(1). Kuhali v. Reno, 266 F.3d 93, 103 (2d Cir. 2001)
(stating that section 237(a)(2)(C) of the Act “encompass[es] convictions
of crimes for which possessing or carrying firearms is an element”);Cite as 25 I&N Dec. 721 (BIA 2012) Interim Decision #3744
732
see also Matter of Pichardo, 21 I&N Dec. 330 (BIA 1996); Matter
of Lopez-Amaro, 20 I&N Dec. 668 (BIA 1993), aff’d, 25 F.3d 986 (11th
Cir.1994).
Section 120.14(1) provides that a person is guilty of menacing in the
second degree when he or she intentionally places or attempts to place another
person in reasonable fear of physical injury, serious physical injury, or death
by displaying a deadly weapon, dangerous instrument, or what appears
to be a pistol, revolver, rifle, shotgun, machine gun or other firearm. Under
New York law, the following three elements must be proven beyond
a reasonable doubt for a conviction to lie under section 120.14(1):
(1) That the defendant . . . displayed a deadly weapon, dangerous instrument, or what
appears to be a pistol, revolver, rifle, shotgun, machine gun or other firearm to [the
victim];
(2) That the display of such deadly weapon, dangerous instrument, or what
appeared to be a pistol, revolver, rifle, shotgun, machine gun, or other firearm
by the defendant . . . placed the victim . . . in reasonable fear of physical injury,
serious physical injury or death; and
(3) That the defendant . . . intentionally placed or attempted to place [the victim]
in reasonable fear of physical injury, serious physical injury, or death.
Charges to the Jury and Requests to Charge in a Criminal Case in New York,
§ 54:2. Second degree—Displaying weapon—Model charge, available
at CTJNY § 54:2 (Westlaw Oct. 2011).
Section 120.14(1) is itself divisible because the “deadly weapon” may
or may not be a firearm under 18 U.S.C. § 921(a). See N.Y. Penal Law
§ 10.00(12) (McKinney 1996) (defining a deadly weapon, in part, as “any
loaded weapon from which a shot . . . may be discharged”). In other words,
the statute contains an element—use of a “deadly weapon”—that could
be satisfied by removable conduct—that is, possession or carrying of “any
loaded weapon from which a shot . . . may be discharged.” However, it also
contains elements that are satisfied by conduct that would not render the
respondent removable. For example, the use of a knife or some forms
of a “dangerous instrument,” such as a vehicle, to commit a violation would
not be a removable offense under section 237(a)(2)(C) of the Act because
the use of a firearm, as defined in 18 U.S.C. § 921(a), is not involved.
See N.Y. Penal Law § 10.00(12) (including knives in the definition
of a “deadly weapon”), § 10.00(13) (defining a “dangerous instrument”).
Moreover, the use of “what appears to be a pistol” to commit a violation
would also not be a removable offense under section 237(a)(2)(C), because
a plastic water pistol, for example, is not a firearm under 18 U.S.C. § 921(a).
Because section 120.14(1) can result in a categorical match or mismatch
of elements when compared with section 237(a)(2)(C) of the Act, it isCite as 25 I&N Dec. 721 (BIA 2012) Interim Decision #3744
12 Neither the complaint nor the plea colloquy specifically alleges that the firearm was
“loaded,” which would appear necessary for it to meet the definition of a “deadly weapon”
under New York law. See supra note 9. However, whether the firearm was loaded or not
is irrelevant to the ground of removability under section 237(a)(2)(C), and we cannot look
behind the conviction itself. Moreover, it may well be that an unloaded firearm would
constitute a “dangerous instrument” and therefore support the conviction.
13 The respondent also argues that his conviction is invalid under the Supreme Court’s
decision in Padilla v. Kentucky, 130 S. Ct. 1473 (2010), and requests that we revisit sua
sponte our previous affirmance of the Immigration Judge’s denial of cancellation of removal
in the exercise of discretion. We decline to address these issues because they are beyond
the scope of the Second Circuit’s remand. We also have no jurisdiction over the question
whether the respondent’s conviction is valid.
733
divisible, regardless of the fact that not one of the three subdivisions standing
alone is categorically a firearms offense under section 237(a)(2)(C).
As previously noted, the complaint charged the respondent with violating
section 120.14(1) by placing his victim in reasonable fear of injury or death
by displaying and pointing a revolver at her. During his plea colloquy, the
respondent admitted that he committed the offense of menacing in that he did
“pull out a revolver and point the revolver at the complainant . . . and menace
her with that weapon.” Thus, because both the complaint, which served as the
charging instrument, and the plea colloquy are properly considered under
the modified categorical approach and establish that the “deadly weapon”
at issue was a firearm, we find that the respondent is removable under
section 237(a)(2)(C) of the Act.12 Accordingly, the respondent’s appeal will
be dismissed.13
ORDER: The appeal is dismissed.