Santana v. Holder
714 F.3d 140
2d Cir.2013Background
- Santana, Dominican Republic native, became a lawful permanent resident in 1968 and was convicted in NY in 1991 of attempted arson in the second degree.
- He also pleaded guilty in 1999 to criminal possession of a controlled substance (cocaine) in the seventh degree.
- In 2007 he returned from the Dominican Republic; DHS deemed him inadmissible due to his convictions.
- Removal proceedings were initiated; the IJ found removal based on the substance conviction, then another IJ decision found removal based on attempted arson.
- Santana sought cancellation of removal but was denied because arson was deemed an aggravated felony under INA § 101(a)(43)(F)/(U).
- BIA upheld the IJ’s rulings, and Santana petitioned for review challenging whether NY arson second degree is a crime of violence.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether attempted arson in the second degree is a crime of violence | Santana argues NY arson second degree is not a crime of violence. | Government contends arson involves substantial risk of force and is a crime of violence. | Yes; it is a crime of violence under 18 U.S.C. § 16(b). |
Key Cases Cited
- Vargas-Sarmiento v. U.S. Dep't of Justice, 448 F.3d 159 (2d Cir. 2006) (categorical approach to 'crime of violence' interpretation)
- Blake v. Gonzales, 481 F.3d 152 (2d Cir. 2007) (definition and application of 'crime of violence')
- Leocal v. Ashcroft, 543 U.S. 1 (U.S. 2004) (intentional use of force required for physical force analysis)
- Dalton v. Ashcroft, 257 F.3d 200 (2d Cir. 2001) (substantial likelihood of intentional force required)
- Payne v. Jones, 638 F. Supp. 669 (E.D.N.Y. 1986) (arson second degree involves presence of another person in building)