Singh v. Barr, 939 F.3d 457

John Derek James Junior Singh, a Guyanese-born lawful permanent resident (admitted 1994), pled guilty in 2003 to second-degree assault under NYPL § 120.05(2) and was sentenced to one year; he had a prior 2000 youthful-offender adjudication for attempted robbery and was on probation when the assault occurred.
In 2013 Singh was placed in removal proceedings as removable for committing an aggravated felony (a crime of violence); he conceded removability before the IJ and sought withholding of removal and CAT relief.
The IJ relied on the police report (describing a machete slash), Singh’s guilty plea, and the PSR to find the offense a "particularly serious crime," deny withholding, and make an adverse credibility finding as to a proffered country-conditions witness; the IJ also denied CAT deferral on the merits.
The BIA affirmed the IJ’s decisions, agreeing the conviction was a particularly serious crime and upholding the adverse credibility determination and denial of CAT deferral.
Singh petitioned for review arguing (1) after Sessions v. Dimaya his NYPL § 120.05(2) conviction no longer qualifies as an aggravated-felony crime of violence, (2) the particularly-serious-crime determination and use of the PSR/police report violated due process, and (3) the factual findings denying withholding and CAT relief were erroneous.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether NYPL § 120.05(2) is a "crime of violence" after Dimaya	Singh: Dimaya invalidated §16(b); §16(a) doesn't encompass §120.05(2) so conviction is not a crime of violence	Govt: §120.05(2) requires use of physical force (deadly weapon/dangerous instrument) and falls within §16(a)	Held: §120.05(2) is a crime of violence under §16(a); conviction remains an aggravated felony and Singh is removable
Whether the assault is a "particularly serious crime" and admissibility/use of PSR and police report	Singh: PSR was irrelevant and admission violated due process; police report was inadmissible hearsay; IJ improperly relied on contested facts	Govt: PSR only used to confirm probation status; police report was probative and Singh failed to preserve specific evidentiary challenges below	Held: BIA/IJ did not violate due process; any PSR error harmless; Singh failed to preserve attack on police report; crime is particularly serious
Denial of CAT deferral and withholding — factual findings and credibility	Singh: IJ erred in adverse credibility finding for witness Alli and showed insufficient consideration of country conditions to deny CAT/withholding	Govt: findings were factual and discretionary and thus not reviewable here; evidence insufficient to meet CAT/withholding standards	Held: Court lacked jurisdiction to review these essentially factual determinations; denial of CAT deferral and withholding affirmed

Sessions v. Dimaya, 138 S. Ct. 1204 (2018) (struck down §16(b) residual clause as unconstitutionally vague)
Johnson v. United States, 559 U.S. 133 (2010) ("violent force" requires force capable of causing physical pain or injury)
Leocal v. Ashcroft, 543 U.S. 1 (2004) (elements‑clause analysis and ordinary meaning of "crime of violence")
Banegas Gomez v. Barr, 922 F.3d 101 (2d Cir. 2019) (modified categorical approach and §16(a) analysis guidance)
Morris v. Holder, 676 F.3d 309 (2d Cir. 2012) (earlier holding that NYPL §120.05(2) fell within §16(b))
United States v. Walker, 442 F.3d 787 (2d Cir. 2006) (NYPL §120.05(2) is a violent felony under ACCA/§924(e) elements clause)
Ramos v. United States, 892 F.3d 599 (3d Cir. 2018) (analogous assault statute analysis; discussion of omissions and violent‑force requirement)
Villanueva v. United States, 893 F.3d 123 (2d Cir. 2018) (physical‑force inquiry focuses on impact of weapon/substance on victim)
Ortiz‑Franco v. Holder, 782 F.3d 81 (2d Cir. 2015) (jurisdiction limited to constitutional claims and questions of law when removability conceded)
Xiao Ji Chen v. U.S. Dep’t of Justice, 471 F.3d 315 (2d Cir. 2006) (factual credibility and discretionary findings are generally unreviewable)