Roderick LANFERMAN, Petitioner, v. BOARD OF IMMIGRATION APPEALS, Executive Office for Immigration Review, U.S. Department of Justice, Eric H. Holder, Jr., Bureau of Immigration & Custom Enforcement, as successor to the Immigration and Naturalization Service, Department of Homeland Security, Janet Napolitano, Respondents.
Docket No. 06-3432-ag.
United States Court of Appeals, Second Circuit.
Argued: May 30, 2007. Decided: Aug. 5, 2009.
577 F.3d 84
* Pursuant to
Paul Naman, Assistant United States Attorney, for Matthew D. Orwig, United States Attorney for the Eastern District of Texas, Beaumont, TX, for Respondent.
Before: KEARSE, STRAUB, and POOLER, Circuit Judges.
Petitioner Roderick Lanferman, a native of Guyana, seeks review of a June 22, 2006, decision of the Board of Immigration Appeals (“BIA“), affirming the March 18, 2005, order of Immigration Judge (“IJ“) Philip J. Montante, Jr., finding Lanferman removable under Section 237(a)(2)(C) of the Immigration and Nationality Act (“INA“),
BACKGROUND
Lanferman arrived in the United States as a lawful permanent resident in 1990. On August 8, 1996, he was convicted in Bronx Criminal Court for the offense of menacing in the second degree in violation of Section 120.14 of New York Penal Law, a misdemeanor. The underlying complaint includes a brief narrative describing the events that led to the conviction: in the course of a dispute with his wife, Lanferman allegedly threatened her with a loaded revolver. Lanferman was originally charged with several firearm-related felonies in addition to the menacing count, but the firearm charges were later dropped when Lanferman, with the assistance of a Legal Aid attorney, pleaded guilty to the menacing charge.
On March 18, 2005, the IJ issued a revised decision reaffirming his previous finding that Lanferman was removable for having committed a firearm offense. The IJ explained that because Section 120.14 of New York Penal Law “encompasses an offense that constitutes a firearm violation and offenses that do not,” it is necessary to look to the record of conviction—which includes the criminal complaint, plea colloquy, and certificate of disposition—to determine whether Lanferman‘s offense constitutes a firearm violation under Section 237(a)(2)(C) of the INA. The IJ observed that the state complaint charges Lanferman with menacing in the second degree in violation of Section 120.14 of New York Penal Law, and specifies that Lanferman “pulled out a Hopkins and Allen Armes Co. .32 s/w CAL. revolver loaded with four live rounds, and pointed the revolver at the victim, placing her in reasonable fear of physical injury, serious physical injury or death.” The IJ also relied on the transcript of the plea colloquy, which includes the following:
THE COURT: Do you admit on August 2, 1996, at approximately 12:10 a.m., you were at 654 East 125th Street, County of the Bronx, State of New York, and that you did commit the offense of menacing, is that right?
THE DEFENDANT: Yes, Ma‘am.
THE COURT: In that you did pull out a revolver and point the revolver at the complainant, Ms. Lanferman, and menace her with that weapon, is that right?
THE DEFENDANT: Yes, Ma‘am.
Thus, the IJ found Lanferman “removable as charged under [S]ection 237(a)(2)(C) by evidence that is clear, unequivocal, and convincing.”
On June 22, 2006, the BIA affirmed the IJ‘s determination that Lanferman was removable based on his conviction for a firearm offense. In reaching this conclusion, the BIA specifically referred to the factual allegations in the criminal complaint and directly quoted those portions of the plea colloquy relied on by the IJ. The BIA also upheld the IJ‘s denial of cancellation of removal.
On July 21, 2006, Lanferman petitioned this court for review of the BIA decision.
DISCUSSION
We generally lack jurisdiction to review final orders of removal based on an alien‘s conviction for certain crimes, including firearm offenses. See
1. The Guilty Plea
On appeal, Lanferman first argues that the agency erred in relying on his guilty plea, because that plea was obtained in violation of certain constitutional rights. This “contention is nothing more than a collateral attack on his state conviction. Collateral attacks are not available in a . . . petition challenging the BIA‘S removal decision.” Abimbola v. Ashcroft, 378 F.3d 173, 181 (2d Cir. 2004); see also Vargas v. Dep‘t of Homeland Sec., 451 F.3d 1105, 1107 (10th Cir. 2006); Taylor v. United States, 396 F.3d 1322, 1330 (11th Cir. 2005); Mendez-Alcaraz v. Gonzales, 464 F.3d 842, 844 n. 14 (9th Cir. 2006); Drakes v. INS, 330 F.3d 600, 606 (3d Cir. 2003); Mansoori v. INS, 32 F.3d 1020, 1024 (7th Cir. 1994).1 Accordingly, Lanferman‘s first argument fails.
2. Categorical Analysis of Section 120.14 of New York Penal Law
Lanferman next contends that the government has not established conviction of a firearm offense by clear and convincing evidence. Pursuant to Section 237(a)(2)(C) of the INA, noncitizens who commit certain firearm offenses are deportable. See
In assessing an alien‘s removability, we have adopted “a categorical approach that looks to the elements of the offense as defined by statute, rather than to the particular facts of the alien‘s criminal activity.” Id. at 103; see Dulal-Whiteway v. U.S. Dep‘t of Homeland Sec., 501 F.3d 116, 124-27 (2d Cir. 2007) (discussing development of categorical approach), abrogated on other grounds by Nijhawan v. Holder, 557 U.S. 29, 129 S.Ct. 2294, 2298, 174 L.Ed.2d 22 (2009). In some instances, however, a statute may be subject to what we have termed the “modified categorical approach,” which allows for limited review of the record. See, e.g., Dulal-Whiteway, 501 F.3d at 122. The modified categorical approach calls for a two-step inquiry: “first, we determine if
In giving his plea, Lanferman stated only that he was pleading guilty to a violation of Section 120.14 of New York Penal Law. That Section states:
A person is guilty of menacing in the second degree when:
1. He or she intentionally places or attempts to place another person in reasonable fear of physical injury, serious physical injury or death by displaying a deadly weapon, dangerous instrument or what appears to be a pistol, revolver, rifle, shotgun, machine gun or other firearm; or
He or she repeatedly follows a person or engages in a course of conduct or repeatedly commits acts over a period of time intentionally placing or attempting to place another person in reasonable fear of physical injury, serious physical injury or death; or
He or she commits the crime of menacing in the third degree in violation of that part of a duly served order of protection, or such order which the defendant has actual knowledge of because he or she was present in court when such order was issued, pursuant to article eight of the family court act, section 530.12 of the criminal procedure law, or an order of protection issued by a court of competent jurisdiction in another state, territorial or tribal jurisdiction, which directed the respondent or defendant to stay away from the person or persons on whose behalf the order was
issued.5
N.Y. Penal Law § 120.14. As Lanferman did not specify the subsection to which he was pleading, and Section 120.14 (and indeed its three subsections) “encompass[] both acts that do and do not [constitute a removable offense],” Michel v. INS, 206 F.3d 253, 263 (2d Cir. 2000) (quotation marks omitted), we next ask whether Section 120.14 is subject to the modified categorical approach such that we may look to the record of conviction. To do so we must first ascertain whether Section 120.14 is divisible. If it is, then Lanferman is removable because the complaint explicitly charges him under “P.L. 120.14(1)” and recites the elements of subsection (1), alleging “that the defendant did: . . . intentionally place or attempt to place another person in reasonable fear of physical injury, serious physical injury or death by displaying a deadly weapon, dangerous instrument or what appears to be a pistol, revolver, rifle, shotgun, machine gun or other firearm.”6 And, the plea colloquy reveals that Lanferman used a revolver in committing the offense.
We “have explicitly found statutes divisible only where the removable and non-removable offenses they describe are listed in different subsections or comprise discrete elements of a disjunctive list of proscribed conduct.” Dulal-Whiteway, 501 F.3d at 126. Nevertheless, we recently made clear that the exact parameters of the divisibility inquiry have not been determined, noting that we have never “explicitly queried whether [divisibility] extends to a statute . . . where only one type of generic conduct . . . is proscribed, but an alien can commit the conduct both in ways that would render him removable . . . and in ways that would not. . . .” Id. at 127; see also James, 522 F.3d at 255 (noting open question); Gertsenshteyn v. U.S. Dep‘t of Justice, 544 F.3d 137, 149 (2d Cir. 2008) (same).
In Dulal-Whiteway, we outlined the three approaches that our Circuit might adopt, stating that we might permit divisibility:
- where the alternative means of committing a violation are enumerated as discrete alternatives, either by use of disjunctives or subsections, see 501 F.3d at 126-27;
- where either the above approach permits divisibility or the statute of conviction or removability provision “invite[s] inquiry into the facts underlying the conviction at issue,” when, for example, “it expresses such a specificity of fact that it almost begs an adjudicator to examine the facts at issue,” id. at 127-28 (quoting Singh v. Ashcroft, 383 F.3d 144, 161-62 (3d Cir. 2004)); and
- in “all statutes of conviction . . . regardless of their structure, so long as they contain an element or elements that could be satisfied either by removable or non-removable conduct,” id. at 128.
Faced with this same question in James, “we deem[ed] it the wiser and more prudent course to give the BIA an opportunity
The first approach outlined in Dulal-Whiteway would require that Section 120.14 explicitly reference a class of weapons that are categorically firearms in order to be deemed divisible. See, e.g., Vargas-Sarmiento v. U.S. Dep‘t of Justice, 448 F.3d 159, 167 (2d Cir. 2006) (“A criminal statute is ‘divisible’ if it encompasses multiple categories of offense conduct, some, but not all, of which would categorically constitute aggravated felonies under the INA.” (emphasis added)). Under this approach, Lanferman cannot be found removable because none of the three subsections of Section 120.14 categorically constitutes a firearm offense under Section 237(a)(2)(C) of the INA. Subsections (2) and (3) do not describe offenses that categorically involve firearms. Nor does subsection (1), which is itself divisible. See Canada v. Gonzales, 448 F.3d 560, 567 (2d Cir. 2006) (noting that enumerated subsections are not a prerequisite to a finding of divisibility). Thus, Section 120.14(1) punishes three types of menacing: (i) with a “deadly weapon,” (ii) with a “dangerous instrument,” and (iii) with “what appears to be a pistol, revolver, rifle, shotgun, machine gun or other firearm.” N.Y. Penal Law § 120.14(1). In this regard, we note that the BIA incorrectly described a firearm as an “element” of subsection (1) of Section 120.14.7 None of the three categories in subsection (1) can sustain a deportability finding since each “encompasses both acts that do and do not [constitute a firearm offense].” Michel, 206 F.3d at 263.
The second approach described in Dulal-Whiteway, would permit divisibility in “all statutes of conviction . . . regardless of their structure, so long as they contain an element or elements that could be satisfied either by removable or non-removable conduct.” 501 F.3d at 128.8 Under this approach, Section 120.14(1), which the criminal complaint denotes as the applicable subsection, would be divisible because a “deadly weapon” may or may not be a firearm. Because the plea colloquy established that the “deadly weapon” at issue was a firearm, Lanferman would be removable.
The third approach, described in Dulal-Whiteway would permit divisibility where
CONCLUSION
In view of James, we remand to the BIA to allow it to consider in the first instance the question of the divisibility of Section 120.14 in light of the legal framework established by our cases. For the foregoing reasons, the petition for review is GRANTED, the order of removal is VACATED, and the case is REMANDED to the BIA for proceedings consistent with this decision.
KEARSE, Circuit Judge, dissenting:
The pertinent section of the Immigration and Nationality Act (“INA“) provides that “[a]ny alien who at any time after admission is convicted under any law of . . . using . . . a firearm . . . (as defined in section 921(a) of title 18) in violation of any law is deportable.”
I have several difficulties with the majority‘s decision to remand to the Board of Immigration Appeals (“BIA“) for a determination as to whether § 120.14 is “divisible“—i.e., whether it “encompasses multiple categories of offense conduct, some, but not all, of which would categorically constitute” a removable offense, Blake v. Gonzales, 481 F.3d 152, 158 (2d Cir. 2007) (quoting Vargas-Sarmiento v. U.S. Dep‘t of Justice, 448 F.3d 159, 167 (2d Cir. 2006)). First, the determination as to whether a given section of a penal code is divisible entails the interpretation of a law that the BIA does not administer. As the majority notes, “[w]e owe no deference . . . to the Board in its interpretation of criminal statutes that it does not administer,” Majority Opinion ante at 88 (internal quotation marks omitted). Further, given that our cases have repeatedly discussed “three approaches that our Circuit might adopt” in determining divisibility, id. at 90 (emphasis mine), i.e., the three instances in which “we might permit divisibility,” id. (emphasis mine), our remand for the BIA to decide whether § 120.14 is divisible is merely an invitation for the BIA to guess which approach our Court will adopt. And, of course, regardless of which approach the BIA concludes we will adopt, we will owe that conclusion no deference.
Second, and more importantly, it escapes my understanding as to why the majority believes that § 120.14, which is divided into three numbered subsections, even presents a question of divisibility. It is of course true that subsection (1) of § 120.14 encompasses more than menacing with a firearm, as it prohibits menacing
The majority states that Lanferman “did not specify the subsection [of § 120.14] to which he was pleading.” Majority Opinion ante at 90. But it is clear that the state court questioned Lanferman about conduct that fit expressly within subsection (1), and asked no questions about conduct prohibited by the other subsections of § 120.14. (See Plea Tr. 1-7.) Thus, the state court asked, and Lanferman specified, that he “did commit the offense of menacing . . . [i]n that [he] did pull out a revolver and point the revolver at the complainant, Ms. Lanferman, and menace her with that weapon . . . [f]or the purpose of putting her in fear of physical injury.” (Id. at 3-4.) These admitted facts fit only subsection (1) of § 120.14, no other subsection.
The Supreme Court has provided guidance as to the way in which we should determine whether a prior conviction was one that has consequences in a subsequent legal proceeding; most often the issue has been whether a sentence should be enhanced because of a prior conviction for a crime of violence. See, e.g., Chambers v. United States, 555 U.S. 122, 129 S.Ct. 687, 172 L.Ed.2d 484 (2009); James v. United States, 550 U.S. 192, 127 S.Ct. 1586, 167 L.Ed.2d 532 (2007); Shepard v. United States, 544 U.S. 13, 125 S.Ct. 1254, 161 L.Ed.2d 205 (2005); Taylor v. United States, 495 U.S. 575, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990). In its most recent opinion, in a deportation case, the Court reiterated that
sometimes a separately numbered subsection of a criminal statute will refer to several different crimes, each described separately. And it can happen that some of these crimes involve violence while others do not. . . . In such an instance, we have said, a court must determine whether an offender‘s prior conviction was for the violent, rather than the nonviolent . . . , by examining “the indictment or information and jury instructions,” Taylor, [495 U.S.] at 602, . . . or, if a guilty plea is at issue, by examining the plea agreement, plea colloquy or “some comparable judicial record” of the factual basis for the plea. Shepard v. United States, 544 U.S. 13, 26 (2005).
Nijhawan v. Holder, 557 U.S. 29, 129 S.Ct. 2294, 2299, 174 L.Ed.2d 22 (2009) (emphases added). This process is equally applicable to the determination of whether a prior conviction involved using a firearm. I thus see no reason for concluding that the immigration judge was not allowed to find Lanferman removable on the basis of the transcript of his plea allocution admission that he threatened the complainant with a revolver.
Finally, I do not agree with the majority‘s view, see ante at 86, that “we are bound by James v. Mukasey, 522 F.3d 250 (2d Cir. 2008),” to remand to the BIA for a determination of whether § 120.14 of the New York Penal Law is divisible. James v. Mukasey—which found it “prudent” to remand to the BIA, 522 F.3d at 259—involved a conviction for Endangering the Welfare of a Child in violation of New York Penal Law § 260.10(1), which prohibits “knowingly act[ing] in a manner likely to be injurious to the physical, mental or moral welfare of a child less than seventeen years old,” a prohibition that encompasses many kinds of conduct. James was convicted of violating § 260.10(1) after he admitted having had “sexual contact with a minor,” James v. Mukasey, 522 F.3d at 258 (internal quotation marks omitted). The question was whether that conviction
I see no similar definitional problems in interpreting the term “firearm” or in understanding that a “revolver” constitutes a firearm. And given Lanferman‘s explicit plea-allocution admission that he “did pull out a revolver and point the revolver at the complainant” (Plea Tr. at 3-4), I cannot agree with the majority that his “conviction of a firearm-related offense” was “not established . . . by clear and convincing evidence,” Majority Opinion ante at 86.
Accordingly, I dissent.