Second Circuit Finds that NY Possession for Sale is not a Controlled Substance Offense

The Second Circuit has determined that a New York conviction for possession for sale of a controlled substance is not a controlled substance offense because it criminalizes possession of several cocaine isomers not found in the federal drug statutes and the statute is indivisible.

The full text of US v. Chaires can be found here: https://ww3.ca2.uscourts.gov/decisions/isysquery/a3eff4c5-8ea3-4d44-b8f2-ca139dc304b1/11/doc/20-4162_complete_opn.pdf#xml=https://ww3.ca2.uscourts.gov/decisions/isysquery/a3eff4c5-8ea3-4d44-b8f2-ca139dc304b1/11/hilite/

BIA Addresses NY Burglary Conviction

The Board of Immigration Appeals (Board) has determined that a New York conviction for second-degree burglary of a building (as opposed to a dwelling) is overbroad when compared to the definition of a burglary aggravated felony because it criminalizes burglaries of inclosed motor trucks. The statute is also invisible with respect to the definition of a building, so any subsection criminalizing burglary of a building will not meet the definition of a burglary aggravated felony.

The conviction also does not qualify as a theft aggravated felony because it only requires the intent to commit a crime, and there is no requirement that a burglar take property or otherwise exercise control of property without consent.

However, the statute is divisible into different subsections, and the subsection criminalizing the display of a firearm during a burglary is a crime of violence aggravated felony because another person must be present to view the display of the weapon, and that person must feel threatened by the display. Thus, the display of the firearm necessarily involves the use, attempted use, or threatened use of physical force.

The analysis pertaining to the crime of violence drew a detailed dissent, attacking the majority’s analysis of New York criminal law.

The full text of Matter of Pougatchev can be found here:

https://www.justice.gov/eoir/page/file/1584666/download

Second Circuit Finds that NY Conviction for Second Degree Sexual Abuse is an Aggravated Felony

The Second Circuit has determined that a New York conviction for second degree sexual abuse qualifies as a sexual abuse of a minor aggravated felony. The opinion included a concurrence calling on the Second Circuit to reexamine its case law on the definition of sexual abuse of a minor in light of more recent Supreme Court case law.

The full text of Debique v. Garland can be found here:

https://www.ca2.uscourts.gov/decisions/isysquery/fe9d6267-187a-43e6-822f-738f2704f49b/2/doc/21-6208_complete_opn.pdf#xml=https://www.ca2.uscourts.gov/decisions/isysquery/fe9d6267-187a-43e6-822f-738f2704f49b/2/hilite/

Second Circuit Finds NY Conviction for Attempted First-Degree Assault is a Crime of Violence

The Second Circuit has determined that New York’s first-degree assault statute is divisible, but the prongs that require intent to cause physical injury and use of a deadly weapon or dangerous instrument match the definition of a crime of violence.

The full text of Singh v. Garland can be found here: https://www.ca2.uscourts.gov/decisions/isysquery/fe9d6267-187a-43e6-822f-738f2704f49b/10/doc/19-2910_opn.pdf#xml=https://www.ca2.uscourts.gov/decisions/isysquery/fe9d6267-187a-43e6-822f-738f2704f49b/10/hilite/

BIA Finds that NY Second Degree Burglary is Aggravated Felony

The Board of Immigration Appeals has determined that a New York conviction for second degree burglary matches the generic definition of a burglary aggravated felony “because the statute requires burglary of a structure or vehicle that has been adapted or is customarily used for overnight accommodation.”

The full text of Matter of V-A-K- can be found here:

https://www.justice.gov/eoir/page/file/1526896/download

Second Circuit Finds that Conviction for NY Attempted Money Laundering in Second Degree is not CIMT

The Second Circuit has determined that a New York conviction attempted money laundering in the second degree is not a crime involving moral turpitude because the statute does not impose the scienter requirement needed to constitute a CIMT. “Although the statute requires the defendant’s knowledge that the financial transaction is ‘designed to . . . conceal or disguise the nature, the location, the source, the ownership or the control of the proceeds of specified criminal conduct,’ it does not require that the offender act with the ‘evil intent’ that the BIA has considered to be inherent in a CIMT: that is, an intention to conceal the underlying criminal activity that created the proceeds, to impair government function, or to deceive the government.“

The full text of Jang v. Garland can be found here:
https://www.ca2.uscourts.gov/decisions/isysquery/6e78bae4-78ad-4640-8871-e1e0059d8c70/5/doc/19-4289_opn.pdf#xml=https://www.ca2.uscourts.gov/decisions/isysquery/6e78bae4-78ad-4640-8871-e1e0059d8c70/5/hilite/

An amended opinion ca be found here:

https://www.ca2.uscourts.gov/decisions/isysquery/5c5858dc-da0d-4ad0-ae1b-9c1fe5429531/1/doc/19-4289_amd_opn.pdf#xml=https://www.ca2.uscourts.gov/decisions/isysquery/5c5858dc-da0d-4ad0-ae1b-9c1fe5429531/1/hilite/

Second Circuit finds NY Petit Larceny is CIMT

The Second Circuit has determined that a New York conviction for petit larceny is a crime involving moral turpitude because an intent to appropriate property requires an intent to substantially erode the victim’s ownership rights.

The full text of Ferreiras v. Garland can be found here:

https://www.ca2.uscourts.gov/decisions/isysquery/82e4ac18-2012-401b-8999-8ae9ad5e00e8/5/doc/19-4111_complete_opn_2.pdf#xml=https://www.ca2.uscourts.gov/decisions/isysquery/82e4ac18-2012-401b-8999-8ae9ad5e00e8/5/hilite/

Second Circuit Certifies NY Theft Case to State High Court

The Second Circuit has certified to the New York State Court of Appeals the question of whether an intent to “appropriate” property under New York Penal Law § 155.00(4)(b) requires an intent to deprive the owner of his or her property either permanently or under circumstances where the owner’s property rights are substantially eroded. The Court determined that an answer from the state high court was necessary to determine if New York convictions for petit larceny constitute crimes involving moral turpitude.

The full text of Ferreiras Veloz v. Garland can be found here:

https://www.ca2.uscourts.gov/decisions/isysquery/eb96ed83-0767-49a4-9c47-cceb74705746/18/doc/19-4111_complete_opn.pdf#xml=https://www.ca2.uscourts.gov/decisions/isysquery/eb96ed83-0767-49a4-9c47-cceb74705746/18/hilite/

Second Circuit Finds that Second-Degree NY Assault is Crime of Violence

The Second Circuit has determined that a New York conviction for second-degree assault is a crime of violence because it requires an intent to cause serious harm to another person and the actual infliction of such harm.

The full text of Thompson v. Garland can be found here:

https://cases.justia.com/federal/appellate-courts/ca2/17-3494/17-3494-2021-04-22.pdf?ts=1619101806

BIA Finds that NY Conviction for First-Degree Aggravated Unlicensed Operation of a Motor Vehicle is a CIMT

The Board of Immigration Appeals has determined that New York conviction for first-degree aggravated unlicensed operation of a motor vehicle is a crime involving moral turpitude because it requires the defendant to drive under the influence of alcohol or drugs while knowing or having reason to know that his or her license is suspended.

The full text of Matter of Vucetic can be found here:

https://www.justice.gov/eoir/file/1381766/download

Second Circuit Finds that NY Conviction for Sexual Abuse in the First-Degree is Aggravated Felony

The Second Circuit finds that a New York conviction for sexual abuse in the first-degree is a sexual abuse of a minor aggravated felony. The court noted that a conviction under this subsection requires the victim to be under the age of eleven and that the perpetrator’s “sexual contact” with the victim be “for the purpose of gratifying sexual desire.”

The full text of Rodriguez v. Barr can be found here:

https://www.ca2.uscourts.gov/decisions/isysquery/e2e79608-b2b8-4507-8002-5c8bae39320c/14/doc/18-1070_opn.pdf#xml=https://www.ca2.uscourts.gov/decisions/isysquery/e2e79608-b2b8-4507-8002-5c8bae39320c/14/hilite/

Second Circuit Finds that NY 3d Degree Possession of Stolen Property is an Aggravated Felony

The Second Circuit has determined that a New York conviction for third-degree possession of stolen property is a receipt of stolen property aggravated felony even though the statute does not require the lack of consent of the owner to obtain the property, which brings it outside the generic definition of a theft offense. The court deferred to the Board of Immigration Appeals’ definition of a possession of stolen property aggravated felony in Matter of Alday Dominguez, which provided a separate definition for a receipt of stolen property aggravated felony than a theft aggravated felony.

The petitioner also argued that the statute does not require an intent to deprive the owner of the benefits of ownership. The court disagreed, finding that an intent to deprive the owner of property is inherent in the knowing possession of stolen property under New York law.

The full text of Santana v. Barr can be found here:

https://www.ca2.uscourts.gov/decisions/isysquery/e2e79608-b2b8-4507-8002-5c8bae39320c/13/doc/18-2755_opn.pdf#xml=https://www.ca2.uscourts.gov/decisions/isysquery/e2e79608-b2b8-4507-8002-5c8bae39320c/13/hilite/

Second Circuit Vacates Fraud Aggravated Felony Finding Predicated on Restitution Order

The Second Circuit has vacated a fraud-related aggravated felony finding based on a restitution order. The petitioner was convicted of one count of insurance fraud and one count of grand larceny, and the restitution order did not establish if it was calculated based on losses due to the fraud, the theft, or both. Thus, the government had not proven the $77,000 restitution order was tied to the fraud count.

The full text of Rampersaud v. Barr can be found here:

https://www.ca2.uscourts.gov/decisions/isysquery/439ddf3d-3b3c-4999-bfcc-e7cacdc4ec27/7/doc/19-825_opn.pdf#xml=https://www.ca2.uscourts.gov/decisions/isysquery/439ddf3d-3b3c-4999-bfcc-e7cacdc4ec27/7/hilite/

Eleventh Circuit Finds NY Sexual Misconduct Conviction not Rape Aggravated Felony

The Eleventh Circuit has determined that a New York conviction for sexual misconduct is not categorically a rape aggravated felony. The court declined to determine if the conviction - which covers both statutory and forcible rape offenses - is divisible. Assuming divisibility, the court found that the complaint did not establish whether the petitioner was convicted of a forcible or statutory rape offense. The complaint alleged that he engaged in both types of rape, and the plea itself did not specify to which form of rape he pled.

The full text of George v. Attorney General can be found here:

http://media.ca11.uscourts.gov/opinions/pub/files/201814000.pdf

Second Circuit Concludes that NY Conviction for Attempted Possession of a Sexual Performance by a Child is an Aggravated Felony

The Second Circuit has concluded that a New York conviction for attempted possession of a sexual performance by a child is an aggravated felony related to possession of child pornography. The court rejected the petitioner’s argument that the New York statute had a lower mens rea than the federal statute, finding they both require the defendant to know that a minor was involved in the depiction. The petitioner also argued that the New York statute lacks the affirmative defense permitted by the federal statute, which covers an individual who possesses less than three prohibited visual depictions and, without allowing anyone else to access to them, either promptly destroys them or turns them over to law enforcement. The court deemed the affirmative defense to be irrelevant to the categorical approach.

The full text of Quito v. Barr can be found here:
http://www.ca2.uscourts.gov/decisions/isysquery/327299e4-e63d-454c-8297-339ce94391dc/4/doc/18-996_opn.pdf#xml=http://www.ca2.uscourts.gov/decisions/isysquery/327299e4-e63d-454c-8297-339ce94391dc/4/hilite/

Second Circuit finds that NY Conviction for Second‐Degree Assault with a Deadly Weapon or Dangerous Instrument is Crime of Violence

The Second Circuit has determined that a New York conviction for second-degree assault with a deadly weapon or dangerous instrument is a crime of violence aggravated felony because “he deadly weapon or dangerous instrument element makes obvious that the statute requires the use of violent force.”

The full text of Singh v. Barr can be found here:

https://cases.justia.com/federal/appellate-courts/ca2/14-1018/14-1018-2019-09-24.pdf?ts=1569335405

Second Circuit finds NY Conviction for Child Endangerment is a Crime of Child Abuse

The Second Circuit has determined that a New York child endangerment conviction is a deportable child abuse offense. In so doing, the court reaffirmed its decision to defer to the Board of Immigration Appeals’ definition of a crime of child abuse, which does not require actual harm to a child. The New York statute at issue criminalizes knowingly acting in a manner likely to be injurious to the physical, mental, or moral welfare of a child less than seventeen years old. he New York Court of Appeals has interpreted the as requiring both that the defendant acted with an awareness of the potential for harm and that the harm was likely to occur, and not merely possible.

The full text of Matthew v. Barr can be found here:

http://www.ca2.uscourts.gov/decisions/isysquery/02221bb5-9a17-4413-a7e2-97aecf140138/11/doc/16-3145_complete_opn.pdf#xml=http://www.ca2.uscourts.gov/decisions/isysquery/02221bb5-9a17-4413-a7e2-97aecf140138/11/hilite/

Second Circuit finds that NY Second Degree Conspiracy Conviction is Aggravated Felony

The Second Circuit has determined that a conviction for second-degree conspiracy to commit second-degree murder in New York constitutes an aggravated felony.

The Court noted that NYPL § 105.15 is not a categorical match to the federal definition of conspiracy, because under New York law, a person is guilty of conspiracy in the second degree when, with intent that conduct constituting a Class A felony be performed, he agrees with one or more persons to engage in or cause the performance of such conduct. The INA’s definition of conspiracy, however, requires that the conspiracy be to commit an “aggravated felony.”  Because not all Class A felonies in New York are aggravated felonies, NYPL § 105.15 is not categorically an aggravated felony under the INA.

Nevertheless, the court went on to determine whether the “object crime” charged is an aggravated felony. "[W]here the judgment reflects only the statute for the inchoate offense, the agency may turn to the record of conviction to determine the object offense.” The court then concluded that New York second-degree murder is a categorical match to the federal definition of murder.

The full text of Santana-Felix v. Barr can be found here:

http://www.ca2.uscourts.gov/decisions/isysquery/812ff240-e810-4635-b18d-9078b3f1d0d6/11/doc/17-3850_opn.pdf#xml=http://www.ca2.uscourts.gov/decisions/isysquery/812ff240-e810-4635-b18d-9078b3f1d0d6/11/hilite/  

Eighth Circuit finds that NY Second-Degree Robbery Conviction is Crime of Violence

The Eighth Circuit has determined that a New York second-degree robbery conviction qualifies as a crime of violence under the federal sentencing guidelines. The court noted that the statute requires the defendant to “forcibly steal” property from the victim, and that the force must be capable of causing physical pain or injury.

The full text of US v. Williams can be found here:
http://media.ca8.uscourts.gov/opndir/18/08/171632P.pdf

Second Circuit finds that NY Conviction for Sale of Marijuana in the Third Degree is not Categorically an Aggravated Felony

The Second Circuit has determined that the minimum conduct punishable under New York's sale of marijuana in the third degree statute is distribution of less than an ounce of marijuana for no remuneration.  As such, it includes conduct that is punishable as a misdemeanor in the federal Controlled Substances Act, and cannot be a categorical match to the definition of a drug trafficking aggravated felony.  In interpreting the Supreme Court's decision in Moncrieffe, the Court determined that one ounce (or roughly 30 grams) of marijuana qualified as a "small amount."  The court re-affirmed that when the plain language of the statute includes conduct outside the generic definition of the ground of removability, the petitioner need not show that there is a realistic probability that the state actually prosecutes this conduct.  

The full text of Hylton v. Sessions can be found here:

http://www.ca2.uscourts.gov/decisions/isysquery/cb3c45a2-99de-4595-91ff-493388225f36/1/doc/17-1567_opn.pdf#xml=http://www.ca2.uscourts.gov/decisions/isysquery/cb3c45a2-99de-4595-91ff-493388225f36/1/hilite/