JUAN CARLOS SANTANA-FELIX, Petitioner, υ. WILLIAM P. BARR, UNITED STATES ATTORNEY GENERAL Respondent.
No. 17-3850
United States Court of Appeals for the Second Circuit
MAY 9, 2019
AUGUST TERM 2018; BIA Sagerman, IJ A095 344 985; ARGUED: FEBRUARY 15, 2019
Before: WALKER, CHIN, SULLIVAN, Circuit Judges.
Petition for a review of a decision of the Board of Immigration Appeals (“BIA“) ordering Petitioner‘s removal based on a conviction for an aggravated felony. We deny the petition for review on the grounds that Petitioner‘s conviction for conspiracy in the second degree to commit a felony - here, murder in the second degree - under New York law is an aggravated felony.
NICHOLAS J. PHILLIPS, Prisoners’ Legal Services of New York, Albany, New York, for Petitioner.
The Clerk of Court is respectfully directed to amend the official caption to conform to the above.
REBEKAH NAHAS, Trial Attorney (Joseph H. Hunt, Assistant Attorney General, Briena L. Strippoli, Senior Litigation Counsel, on the brief), Office of Immigration Litigation, United States Department of Justice, Washington, DC, for Respondent.
Petitioner Juan Carlos Santana-Felix, a native and citizen of the Dominican Republic, seeks review of the BIA‘s October 24, 2017 affirmance of a June 15, 2017 decision of an Immigration Judge (“IJ“) ordering Santana-Felix removed based on his conviction for conspiracy in the second degree, in violation of New York Penal Law (“NYPL“)
I.
Santana-Felix is a native of the Dominican Republic and, since 2006, a lawful permanent resident of the United States. In 2013, he was convicted under
The Supreme Court has since held that the crime of violence definition in
II.
In determining whether a state conviction constitutes an aggravated felony, we generally begin by applying the categorical approach to determine “whether the state statute defining the crime of conviction categorically fits within the generic federal definition of a corresponding” offense listed in the Immigration and Nationality Act (“INA“). Flores v. Holder, 779 F.3d 159, 165 (2d Cir. 2015) (quoting Moncrieffe v. Holder, 569 U.S. 184, 190 (2013)). Under this approach, we look only to the statute of conviction to determine whether there is a categorical match and “‘presume that the conviction rested upon nothing more
When there is no categorical match, we next consider whether the state statute is divisible under the modified categorical approach - that is, whether the statute encompasses “elements in the alternative, and . . . [thus] multiple crimes,” as opposed to alternative means to commit the same crime. Mathis v. United States, 136 S. Ct. 2243, 2249, 2257 (2016). If the statute is divisible, we may look beyond the statute to the record of conviction, including the indictment, to determine whether the conviction is an aggravated felony. See id. at 2249.
III.
Nevertheless, when the ground of removal involves an inchoate crime like solicitation, attempt, or conspiracy, we have taken an approach analogous to the modified categorical approach in which we consider only whether the “object crime” charged is an aggravated felony. This is because, absent proof of a specific intent to commit the object crime, an inchoate offense cannot lead to a conviction. See Mizrahi v. Gonzales, 492 F.3d 156, 161 (2d Cir. 2007).
In Mizrahi, we concluded that a New York conviction for solicitation under
We reach the same result here. Absent intent to commit the object offense, conspiracy is not a crime. Id. at 161 (“[C]riminality arises only when the inchoate conduct has the violation of some other law as its specifically intended objective.“). New York‘s jury instruction for a conspiracy charge requires an instruction as to the
New York caselaw also supports this conclusion, since the prosecution must prove the defendant had the intent to commit the specific object offense. “To establish the defendant‘s guilt of conspiracy in the second degree,” the State must “prove that, with the intent that a [C]lass A felony be committed, the defendant agreed with others to engage in or cause the felony to be committed and that one of the conspirators committed an overt act in furtherance of the criminal scheme.” People v. Arroyo, 93 N.Y.2d 990, 991 (1999) (citation omitted). Moreover, the prosecution must show that the agreement contemplated the elements of the substantive offense, see, e.g., People v. Joyce, 474 N.Y.S.2d 337, 347 (2d Dep‘t 1984) (finding insufficient evidence for conspiracy to commit a Class C felony where the relevant felony required the display of a weapon and evidence did not show that defendant agreed to such a display), and New York‘s prohibition against duplicity demands that an individual count may charge only one offense to ensure a unanimous verdict, see
Here, the government met its burden of proving that the object offense in Santana-Felix‘s conspiracy conviction was second-degree murder. The BIA did not err in looking to the indictment to determine the object of the conspiracy because, where the judgment reflects only the statute for the inchoate offense, the agency may turn to the record of conviction to determine the object offense. See Mizrahi, 492 F.3d at 163. The record of conviction for immigration purposes includes “the charging document, a plea agreement, a verdict or judgment of conviction, a record of the sentence, or a plea colloquy transcript.” Dickson v. Ashcroft, 346 F.3d 44, 53 (2d Cir. 2003); see also Lanferman v. BIA, 576 F.3d 84, 89 n.3 (2d Cir. 2009). Because the record of conviction includes a charging document, the BIA did not err in relying on the indictment, which explicitly charged second-degree murder as the object offense of the conspiracy charge.
As a last resort, Santana-Felix contends that the BIA should have disregarded the indictment because it was not signed by the district attorney. Santana-Felix did not present this argument on appeal to the BIA, and it is therefore waived. See Lin Zhong v. U.S. Dep‘t of Justice, 480 F.3d 104, 122 (2d Cir. 2007) (holding that we generally will not address issues not raised before the BIA). Nevertheless, even if we were to reach the merits of this argument, we would still conclude that the BIA properly relied on the indictment, which was a certified copy that reflected a typed signature
IV.
Having determined that the object offense of Santana-Felix‘s conspiracy conviction was second-degree murder, we must determine whether second-degree murder under New York law constitutes an aggravated felony. We employ the same approach described above: we first ask whether the state statute is a categorical match, and if it is not, whether the statute is divisible so that we may apply the modified categorical approach. Santana-Felix contends that second-degree murder in violation of
Depraved indifference to human life has been defined by New York courts as “conduct . . . so wanton, so deficient in a moral sense of concern, so devoid of regard of the life or lives of others, and so blameworthy as to warrant the same criminal liability as that which the law imposes upon a person who intentionally causes the death of another.” People v. Russell, 91 N.Y.2d 280, 287-88 (1998) (internal quotations omitted). Depraved indifference thus necessarily requires a showing of a heightened disregard for human life. See Matter of M-W-, 25 I. & N. Dec. 748, 756 (BIA 2012) (“‘[D]epraved mind murder,’ which has been described as ‘outrageously reckless conduct’ committed with ‘wantonness or total indifference for the value of human life’ is substantially similar to murders marked by ‘extreme indifference to the value of human life.‘“). Moreover, definitions of felony murder under both federal and New York state law are virtually identical and include the same list of predicate offenses.1 Thus,
V.
For the foregoing reasons, Santana-Felix‘s conviction for conspiracy in the second degree to commit second-degree murder under New York law constitutes an aggravated felony. Accordingly, his petition for review is DENIED.