Morris v. Holder
2012 U.S. App. LEXIS 8166
2d Cir.2012Background
- Morris, a Saint Vincent and the Grenadines native, became a U.S. permanent resident in 1980.
- In 1993 Morris pled guilty to second-degree assault under NY PL §120.05(2) and received five years' probation; later violated probation and was imprisoned for one year.
- In 2001 Morris pled guilty to attempted criminal possession of a controlled substance (seventh degree) and received one year of probation.
- In 2008 DHS initiated removal proceedings arguing Morris’ assault conviction rendered him an aggravated felon and citing a controlled-substance conviction.
- An IJ ordered removal; the BIA affirmed, adopting the IJ’s findings that Morris’ assault conviction is an aggravated felony; Morris sought review in the Second Circuit.
- The court held that second-degree assault under NY PL §120.05(2) qualifies as a crime of violence under 18 U.S.C. §16(b) and thus an aggravated felony under 8 U.S.C. §1101(a)(43)(F), and that Padilla v. Kentucky does not alter longstanding civil-nature precedent of deportation; the petition for review is dismissed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Is Morris’ NY §120.05(2) a crime of violence under §16(b)? | Morris argues it is not a crime of violence. | HOLDER argues §16(b) applies, making it a crime of violence. | Yes, it qualifies as a crime of violence. |
| Does Padilla overturn ex post facto precedent for deportation retroactivity? | Padilla overturns longstanding precedent. | Padilla does not alter civil nature of deportation precedent. | Padilla does not overturn; retroactive application remains constitutional. |
| Does the retroactive application of IIRIRA’s aggravated felony definition violate the Ex Post Facto Clause? | Padilla undermines ex post facto protections for deportation. | Statutes retroactively setting deportation criteria do not violate ex post facto. | No, it does not violate the Ex Post Facto Clause. |
Key Cases Cited
- Vargas-Sarmiento v. U.S. Dep't of Justice, 448 F.3d 159 (2d Cir. 2006) (defines §16(b) substantial-risk standard and physical-force scope)
- Jobson v. Ashcroft, 326 F.3d 367 (2d Cir. 2003) (categorical approach to §16(b) felicity)
- Chrzanoski v. Ashcroft, 327 F.3d 188 (2d Cir. 2003) (distinguishes §16(a) from §16(b) analysis)
- Dickson v. Ashcroft, 346 F.3d 44 (2d Cir. 2003) (discussion of force in §16(b))
- Walker v. United States, 442 F.3d 787 (2d Cir. 2006) (ACCA context applying §120.05(2) as violent felony)
- Padilla v. Kentucky, 130 S. Ct. 1473 (2010) (deportation is civil; counsel must discuss deportation risk)
- Kuhali v. Reno, 266 F.3d 93 (2d Cir. 2001) (retroactivity of deportation criteria precedents)
- Galvan v. Press, 347 U.S. 522 (1954) (deportation as civil, not criminal sanction)
- Koziel v. INS, 954 F.2d 831 (2d Cir. 1992) (longstanding ex post facto precedent in deportation)