25 I. & N. Dec. 721
BIA2012Background
- Respondent Lanferman, a Guyanese native and U.S. permanent resident, was convicted in 1996 of menacing in the second degree under NY Penal Law § 120.14.
- Conviction formed the basis for removal proceedings under INA § 237(a)(2)(C), alleging a firearms offense based on the NY conviction.
- Immigration Judge found Lanferman removable and denied cancellation of removal; Board initially dismissed the appeal in 2006.
- Second Circuit remanded in 2009 to decide whether NY § 120.14 is divisible under the modified categorical approach.
- Board adopts the Third Circuit’s approach but ultimately applies the broadest, third divisibility formulation to determine removability.
- Statute § 120.14(1) is found divisible: it can be satisfied by removable or non-removable conduct, depending on the underlying conduct and weapon involved.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Is NY § 120.14(1) divisible for immigration purposes? | Lanferman argues not divisible; the statute’s elements do not map to removable offenses. | DHS contends NY § 120.14(1) is divisible because some conduct yields a removable offense and others do not. | Statute is divisible; certain conduct can be removable or non-removable. |
| Which divisibility framework applies in immigration context? | Lanferman accepts a narrow approach focusing on statutory structure. | DHS urges broader approaches to divisibility to match immigration goals. | Adopts the broadest third formulation: all statutes with elements that can be satisfied by removable or non-removable conduct may be divisible. |
| Does the modified categorical approach apply when a statute is divisible under the broad approach? | Lanferman concedes limited applicability depending on record evidence. | DHS argues the modified categorical approach applies where conviction records show the removable element. | Modified categorical approach applies when record evidence demonstrates that the offense falls within the removable element, given divisibility. |
| Does Lanferman’s 1996 NY conviction for § 120.14(1) qualify as a removable firearms offense under § 237(a)(2)(C)? | Conviction may involve non-firearm elements; not necessarily removable. | Because the complaint and plea show a firearm (revolver) was involved, it matches a removable offense under § 237(a)(2)(C). | Yes; the record shows a firearm was involved, supporting removability. |
Key Cases Cited
- Nijhawan v. Holder, 557 U.S. 29 (2009) (circumstance-specific aspects not subject to the categorical approach)
- Taylor v. United States, 495 U.S. 575 (1990) (categorical approach origins and focus on elements)
- Shepard v. United States, 544 U.S. 13 (2005) (modified categorical approach explained)
- Singh v. Ashcroft, 383 F.3d 144 (2004) (invites inquiry and disjunctive structure in divisibility analysis ( Third Circuit) )
- Dulal-Whiteway v. DHS, 501 F.3d 116 (2007) (divisibility approach breadth recognized in multiple circuits)
- Lanferman v. Bd. of Immigration Appeals, 576 F.3d 84 (2d Cir. 2009) (adopts broad third divisibility formulation for immigration)
- Aguila-Montes de Oca, 655 F.3d 915 (9th Cir. 2011) (en banc: modified categorical approach can apply even when statute is not plainly divisible)