POUGATCHEV

Cite as 28 I&N Dec. 719 (BIA 2023) Interim Decision #4063

Matter of POUGATCHEV, Respondent

Decided May 22, 2023

U.S. Department of Justice

Executive Office for Immigration Review

Board of Immigration Appeals

(1) A conviction for burglary of a building under section 140.25(1)(d) of the New York

Penal Law is not categorically an aggravated felony burglary offense under section

101(a)(43)(G) of the Immigration and Nationality Act, 8 U.S.C. § 1101(a)(43)(G)

(2018), because the statute is overbroad and indivisible with respect to the definition of

“building” under New York law.

(2) A conviction for displaying what appears to be a pistol, revolver, rifle, shotgun,

machine gun, or other firearm while committing burglary under section 140.25(1)(d) of

the New York Penal Law necessarily involves the use, attempted use, or threatened use

of physical force against the person or property of another and therefore constitutes an

aggravated felony crime of violence under section 101(a)(43)(F) of the Immigration and

Nationality Act, 8 U.S.C. § 1101(a)(43)(F).

FOR THE RESPONDENT: Yuriy Pereyaslavskiy, Esquire, Albany, New York

FOR THE DEPARTMENT OF HOMELAND SECURITY: Donald W. Cassidy,

Associate Legal Advisor

BEFORE: Board Panel: GOODWIN and WILSON, Appellate Immigration Judges.

Concurring and Dissenting Opinion: BROWN, Temporary Appellate Immigration Judge.

GOODWIN, Appellate Immigration Judge:

In a decision dated September 24, 2019, the Immigration Judge found the

respondent removable as charged for having been convicted of an aggravated

felony. See section 237(a)(2)(A)(iii) of the Immigration and Nationality Act

(“INA”), 8 U.S.C. § 1227(a)(2)(A)(iii) (2018). The respondent appeals from

the Immigration Judge’s decision ordering him removed. The appeal will be

dismissed.

I. FACTUAL AND PROCEDURAL HISTORY

The respondent, a lawful permanent resident, was convicted in 2017 of

burglary in the second degree in violation of section 140.25(1)(d) of the New

York Penal Law. The Department of Homeland Security (“DHS”) initiated

removal proceedings against the respondent, charging him with removability

under section 237(a)(2)(A)(iii) of the INA, 8 U.S.C. § 1227(a)(2)(A)(iii), for

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having been convicted of an aggravated felony theft or burglary offense

under section 101(a)(43)(G) of the INA, 8 U.S.C. § 1101(a)(43)(G) (2018),

and an aggravated felony crime of violence under section 101(a)(43)(F) of

the INA, 8 U.S.C. § 1101(a)(43)(F) (2018).

The respondent admitted that he was convicted of burglary under section

140.25(1)(d) of the New York Penal Law and that he received a sentence of

at least 1 year imprisonment. However, he argues that his conviction is not

for an aggravated felony and does not render him removable as charged.

The Immigration Judge found that the respondent’s conviction was for an

aggravated felony burglary offense. He did not decide whether the

respondent had been convicted of a crime of violence. For the following

reasons, we conclude that the respondent has not been convicted of an

aggravated felony theft or burglary offense as defined in section

101(a)(43)(G) of the INA, 8 U.S.C. § 1101(a)(43)(G). However, the

respondent has been convicted of an aggravated felony crime of violence as

defined in section 101(a)(43)(F) of the INA, 8 U.S.C. § 1101(a)(43)(F), and

is thus removable from the United States.

II. ANALYSIS

Burglary in the second degree under the New York Penal Law was

defined at all relevant times as follows:

A person is guilty of burglary in the second degree when he knowingly enters or

remains unlawfully in a building with intent to commit a crime therein, and when:

1. In effecting entry or while in the building or in immediate flight therefrom,

he or another participant in the crime:

(a) Is armed with explosives or a deadly weapon; or

(b) Causes physical injury to any person who is not a participant in the crime;

or

(c) Uses or threatens the immediate use of a dangerous instrument; or

(d) Displays what appears to be a pistol, revolver, rifle, shotgun, machine gun

or other firearm; or

2. The building is a dwelling.

Burglary in the second degree is a class C felony.

N.Y. Penal Law § 140.25(1)(d) (McKinney 2017).

DHS bears the burden of proving that the respondent is removable for

having been convicted of an aggravated felony. INA § 240(c)(3)(A),

8 U.S.C. § 1229a(c)(3)(A) (2018). In determining whether the respondent

has been convicted of an aggravated felony, we employ the categorical

approach, which requires us to focus on the elements of the state offense.

Matter of Chairez, 26 I&N Dec. 819, 821 (BIA 2016). “Under this approach

we look ‘not to the facts of the particular prior case,’ but instead to whether

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‘the state statute defining the crime of conviction’ categorically fits within

the ‘generic’ federal definition of a corresponding aggravated felony.”

Moncrieffe v. Holder, 569 U.S. 184, 190 (2013) (citation omitted).

“By ‘generic,’ we mean the offenses must be viewed in the abstract, to

see whether the state statute shares the nature of the federal offense that

serves as a point of comparison.” Id. “Because we examine what the state

conviction necessarily involved, not the facts underlying the case, we must

presume that the conviction ‘rested upon [nothing] more than the least of

th[e] acts’ criminalized, and then determine whether even those acts are

encompassed by the generic federal offense.” Id. at 190–91 (quoting

Johnson v. United States, 559 U.S. 133, 137 (2010)).

We recently analyzed New York’s second degree burglary statute in

Matter of V-A-K-, 28 I&N Dec. 630 (BIA 2022). In that case, we concluded

that the statute “clearly is divisible.” Id. at 632 (holding that subsections (1)

and (2) describe separate crimes); see also Mathis v. United States, 579 U.S.

500, 505 (2016) (“A single statute may list elements in the alternative, and

thereby define multiple crimes.”). We have no reason to depart from this

prior determination, particularly because the respondent concedes he is

convicted of violating subsection (1)(d) of section 140.25 of the New York

Penal Law.

A. Aggravated Felony Theft or Burglary Offense

The Supreme Court of the United States has repeatedly defined generic

burglary as an “unlawful or unprivileged entry into, or remaining in, a

building or structure, with intent to commit a crime.” Quarles v. United

States, 139 S. Ct. 1872, 1875 (2019) (emphasis omitted) (quoting Taylor v.

United States, 495 U.S. 575, 599 (1990)). In Matter of V-A-K-, we analyzed

burglary of a dwelling under section 140.25(2) of the New York Penal Law

and concluded that it fell within this generic definition of burglary. 28 I&N

Dec. at 634; see also N.Y. Penal Law § 140.00(3) (McKinney 2017)

(defining the term “dwelling”). Unlike under subsection (2), for all other

types of burglary under this statute, the least of the acts criminalized is

burglary of a building. See N.Y. Penal Law § 140.00(2) (McKinney

2017) (defining the term “building”). We did not decide in Matter of

V-A-K- whether burglary of a building under New York law falls within the

generic definition of burglary. 28 I&N Dec. at 634 n.7. We must now

resolve that question.1

The Supreme Court has stated that the generic “term ‘burglary’ must

include ‘ordinary,’ ‘run-of-the-mill’ burglaries as well as aggravated ones.”

1

Matter of V-A-K- addressed burglary of a dwelling, which is distinguishable from

burglary of a building. This case thus does not change our holding in Matter of V-A-K-.

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United States v. Stitt, 139 S. Ct. 399, 405 (2018) (citing Taylor, 495 U.S. at

597). This definition, however, is not without limits. For example, the

Supreme Court in Taylor noted that a Missouri law criminalizing the

breaking and entering of “any booth or tent, or any boat or vessel, or railroad

car” would not categorically fall within the generic definition of burglary.

495 U.S. at 599 (emphasis added). In Mathis, 579 U.S. at 507, the parties

agreed that an Iowa statute covering “any building, structure, . . . land, water

or air vehicle, or similar place adapted for overnight accommodation of

persons [or used] for the storage or safekeeping of anything of value” was

broader than the generic definition of burglary. Iowa Code § 702.12 (2013)

(emphasis added). 2

We thus turn to New York’s definition of “building” in the context of

burglary and related offenses.

“Building,” in addition to its ordinary meaning, includes any structure, vehicle or

watercraft used for overnight lodging of persons, or used by persons for carrying on

business therein, or used as an elementary or secondary school, or an inclosed motor

truck, or an inclosed motor truck trailer. Where a building consists of two or more

units separately secured or occupied, each unit shall be deemed both a separate

building in itself and a part of the main building.

N.Y. Penal Law § 140.00(2). Parts of this provision undoubtedly fall within

the generic definition of burglary. A “structure, vehicle or watercraft used

for overnight lodging of persons” meets this definition. See United States v.

Stitt, 139 S. Ct. at 405–07. Just as plainly, however, an “inclosed motor

truck” under section 140.00(2) of the New York Penal Law falls outside the

“building or other structure” element of generic burglary because New York

law treats such trucks as “buildings” even if used only for storage or

recreation, as opposed to residential or business purposes. People v.

Thompson, 714 N.Y.S.2d 264, 264–65 (N.Y. App. Div. 2000) (holding that

“no use-based qualification applies to the question of what constitutes an

‘inclosed motor truck,’” and explaining that “[w]hile the statutory phrase

‘used by persons for carrying on business therein’ applies to the term

‘vehicle’, it does not apply to the term ‘inclosed motor truck’ set forth, in the

disjunctive, later in the same subdivision”).3

2

The question presented in Mathis addressed the divisibility of the statute at issue, rather

than the precise definition of generic burglary. The Court did recognize that the Iowa

statute at issue reached “a broader range of places” than a building or other structure

required for a generic burglary. Mathis, 579 U.S. at 507.

3

As the “inclosed motor truck” clause of section 140.00(2) makes New York’s burglary

statutes categorically overbroad vis-à-vis the “building or other structure” element of

generic burglary, we need not assess the scope of the statute’s “vehicle . . . used by persons

for carrying on business” clause.

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This definition of “building” in section 140.00(2) is not further divisible.

Second degree burglary only refers to a general “building,” and there is no

indication that the specific type of building is an element that must be proven

beyond a reasonable doubt. This statutory term resembles the example given

by the Supreme Court in Mathis of a statute requiring the “use of a ‘deadly

weapon’ as an element of a crime and further provid[ing] that the use of a

‘knife, gun, bat, or similar weapon’ would all qualify.” 579 U.S. at 506.

Such a list provides “diverse means of satisfying a single element of a single

crime.” Id. Because the “statutory list is drafted to offer ‘illustrative

examples,’ . . . it includes only a crime’s means of commission.” Id. at 518.

“[A]uthoritative sources of state law” further support our conclusion that

the term “building” is not divisible. Id. The relevant model jury instructions

for section 140.25 cut in favor of finding the definition of “building” to be

an indivisible list of means. See Matter of Salad, 27 I&N Dec. 733, 736 (BIA

2020) (examining a state’s model jury instructions to determine the elements

of a criminal statute). New York has separate model jury instructions for

each provision of section 140.25, and these instructions refer to the term

“building” generally. 4 See N. Y. Crim. Jury Instr. & Model Colloquies, Penal

Law § 140.25(1)(a), (b), (c), (d) (May 2018). The instructions state that the

definition of “building” may be given “where appropriate.” Id. If the

specific nature of the building were an element rather than a means, this

instruction would necessarily always be appropriate to give. Therefore, we

conclude that the respondent’s conviction for burglary of a building under

section 140.25(1)(d) is not categorically an aggravated felony burglary

offense because the statute is overbroad and indivisible with respect to the

definition of “building” under New York law.

Second degree burglary under New York law is also not an aggravated

felony theft offense. The Supreme Court, the courts of appeals, and this

Board have accepted a generic definition of theft as the “taking of property

or an exercise of control over property without consent with the criminal

intent to deprive the owner of rights and benefits of ownership, even if such

deprivation is less than total or permanent.” Gonzales v. Duenas-Alvarez,

549 U.S. 183, 189 (2007) (citation omitted); see also Matter of

Garcia-Madruga, 24 I&N Dec. 436, 438 (BIA 2008). Second degree

burglary under New York law involves the intent to commit a crime, and

there is no requirement that a burglar take property or otherwise exercise

control of property without consent. See N.Y. Penal Law § 140.25.

Accordingly, the respondent has not been convicted of an aggravated felony

within the meaning of section 101(a)(43)(G) of the INA, 8 U.S.C.

§ 1101(a)(43)(G).

4

The instruction for section 140.25(2) of the New York Penal Law necessarily addresses

burglary of a dwelling.

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B. Aggravated Felony Crime of Violence

We thus next decide whether DHS has sustained its burden to establish

that the respondent has been convicted of an aggravated felony crime of

violence. See INA § 101(a)(43)(F), 8 U.S.C. § 1101(a)(43)(F). We

acknowledge that the Immigration Judge did not reach the aggravated felony

crime of violence issue. However, the parties had an opportunity to brief

both aggravated felony issues before the Immigration Judge. Additionally,

we requested supplemental briefing to allow the parties to address the issue,

and both parties filed supplemental briefs. 5 The issue of whether a state court

conviction categorically falls within the INA’s definition of an aggravated

felony is an issue of law we review de novo. See Matter of Cervantes Nunez,

27 I&N Dec. 238, 239–40 (BIA 2018); 8 C.F.R. § 1003.1(d)(3)(ii) (2023).

There are no underlying factual issues, as the respondent conceded that he

was convicted of violating section 140.25(1)(d) of the New York Penal Law.

Cf. Mellouli v. Lynch, 575 U.S. 798, 804 (2015) (“An alien’s actual conduct

is irrelevant to the inquiry . . . .”). Because there is no factual dispute and the

parties had an opportunity to brief the issue, we are persuaded that we may

reach the legal issue of whether the respondent’s conviction constitutes a

crime of violence, even though the Immigration Judge did not.

To constitute an aggravated felony under section 101(a)(43)(F) of the

INA, 8 U.S.C. § 1101(a)(43)(F), the respondent’s conviction has to have

been for a crime of violence under 18 U.S.C. § 16(a) (2018), for which the

term of imprisonment was at least 1 year. Cf. Sessions v. Dimaya, 138 S. Ct.

1204, 1215–16 (2018) (holding that the crime of violence provision at § 16(b)

is unconstitutionally vague in the immigration context). A crime of violence

under 18 U.S.C. § 16(a) is “an offense that has as an element the use,

attempted use, or threatened use of physical force against the person or

property of another.”

In the context of the crime of violence definition under §16(a), we follow

the Supreme Court’s decisions in Stokeling v. United States, 139 S. Ct. 544

(2019), and Johnson v. United States, 559 U.S. 133 (2010). See Matter of

A. Valenzuela, 28 I&N Dec. 418, 423 (BIA 2021) (applying Stokeling to

determine whether a conviction is for an aggravated felony crime of

violence); Matter of E. Velasquez, 25 I&N Dec. 278, 282 (BIA 2010)

(“Johnson controls our interpretation of a ‘crime of violence’ under § 16(a).”

(footnote omitted)). In Johnson, the Supreme Court held that “the phrase

‘physical force,’ means violent force—that is, force capable of causing

physical pain or injury to another person.” 559 U.S. at 140. Later, in

Stokeling, the Court clarified that the “physical force” defined in Johnson

5

We thank the parties for their thoughtful analyses of this issue within their supplemental

briefs.

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“includes the amount of force necessary to overcome a victim’s resistance.”

139 S. Ct. at 555.

Second degree burglary under New York law is not a categorical crime

of violence. For example, a person commits second degree burglary under

subsection (2) when he or she knowingly enters or remains unlawfully in a

dwelling with intent to commit a crime. N.Y. Penal Law § 140.25(2). The

conduct underlying section 140.25(2) does not necessarily include the use,

attempted use, or threatened use of physical force against the person or

property of another. 6 As the statute is divisible and the respondent concedes

he was convicted under section 140.25(1)(d), we will determine whether a

conviction under this section is categorically a crime of violence. Cf. Stuckey

v. United States, 878 F.3d 62, 67 (2d Cir. 2017) (“Both the government and

Stuckey agree that he was convicted under N.Y. Penal Law § 106.15(3) and

(4), and thus we must apply the categorical approach only as to these

subsections.”).

At the time of conviction, section 140.25(1)(d) of the New York Penal

Law provided:

A person is guilty of burglary in the second degree when he knowingly enters or

remains unlawfully in a building with intent to commit a crime therein, and when:

1. In effecting entry or while in the building or in immediate flight therefrom,

he or another participant in the crime:

....

(d) Displays what appears to be a pistol, revolver, rifle, shotgun, machine gun

or other firearm . . . .

The respondent contends that his conviction does not require that the

display of a firearm involve a victim. He contrasts New York’s burglary

statute with robbery under New York law, which has a requisite element of

forcible stealing. See United States v. Ojeda, 951 F.3d 66, 72 (2d Cir. 2020)

(holding that first degree robbery is a “violent felony” under the Armed

Career Criminal Act (“ACCA”) because “it is not possible to satisfy the

forcible taking element of New York robbery without physical force as

6

We acknowledge that the United States Court of Appeals for the Second Circuit has

held a conviction under section 140.25(2) is a crime of violence for the purpose of

determining whether a defendant is subject to sentencing as a “career offender” under the

United States Sentencing Guidelines. United States v. Hendricks, 921 F.3d 320, 331–32

(2d Cir. 2019). However, the court made clear that the determination was based upon the

residual clause. See id. at 332. The Second Circuit specifically considered the vagueness

issue and determined that “[s]entencing [g]uidelines are not subject to void-for-vagueness

challenges.” Id. In contrast, the INA’s aggravated felony crime of violence is defined by

18 U.S.C. § 16. As 18 U.S.C. § 16(b) has been determined to be unconstitutionally vague

in the immigration context, the Hendricks holding is inapplicable here. See Dimaya, 138

S. Ct. at 1223.

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defined by the Supreme Court”). Forcible stealing is defined as when a

person “uses or threatens the immediate use of physical force upon another

person” for certain specified purposes. N.Y. Penal Law § 160.00 (McKinney

2023) (emphasis added). According to the respondent, section 140.25(1)(d)

does not require that a victim be present or that the defendant be aware that

another person witnessed the display of what appears to be a pistol, revolver,

rifle, shotgun, machine gun or other firearm, and thus the statute does not

necessarily involve the use, attempted use, or threatened use of physical force

against the person or property of another. For the following reasons, this

argument is unpersuasive.

Under New York law, in order to display what appears to be a listed

weapon, another person must be present to witness it. See People v.

Baskerville, 457 N.E.2d 752, 756 (N.Y. 1983). This requirement is

consistent with the common understanding of the word “display.” The

Merriam-Webster’s Dictionary defines “display,” in relevant part, as “to put

or spread before the view[;] . . . to make evident[;] . . . to exhibit

ostentatiously.” Display, Merriam-Webster’s Collegiate Dictionary (11th

ed. 2020) (emphasis added). The use of the word “view” necessarily implies

a viewer. The plain language in the statute of “what appears to be” also

works in conjunction with the term “display,” indicating that a person other

than the perpetrator must perceive what appears to be a weapon. New York’s

model jury instructions reflect this common understanding of the word

“display,” stating that:

“A person DISPLAYS what appears to be a pistol, revolver, rifle, shotgun, machine

gun or other firearm when that person consciously displays or manifests the presence

of an object that can reasonably be perceived as a pistol, revolver, rifle, shotgun,

machine gun or other firearm, and when the person to whom that object is displayed

or manifested perceives it as a pistol, revolver, rifle, shotgun, machine gun or other

firearm. It need not be shown, however, that the object displayed was in fact a pistol,

revolver, rifle, shotgun, machine gun or other firearm.”

N.Y. Crim. Jury Instr. & Model Colloquies, Penal Law § 140.25(1)(d)

(emphasis added). These instructions contemplate that the conscious display

of what appears to be a firearm will be in front of a person. 7

This definition of display is drawn from a line of robbery cases. See

People v Lopez, 535 N.E.2d 1328, 1330–31 (N.Y. 1989); Baskerville,

457 N.E.2d at 755–56. Robbery is distinct from burglary, as robbery

involves the forcible stealing from a person. See N.Y. Penal Law § 160.00.

However, both robbery and burglary can have the same aggravating element

7

The jury instructions are intended as model instructions and the drafters recognize that

certain cases might call for tailored instructions.

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of displaying what appears to be a pistol, revolver, rifle, shotgun, machine

gun, or other firearm. New York courts apply the canon of statutory

construction that “[w]here the same word or group of words is used . . . in

different statutes, if the acts are similar in intent and character[,] the same

meaning may be attached to them.” People v. Thomas, 121 N.E.3d 270, 274

(N.Y. 2019) (alteration in original) (quoting People v. Duggins, 821 N.E.2d

924, 945 (N.Y. 2004)).

Consistent with this statutory construction, New York courts have applied

the same definition of “display” for both robbery and burglary cases. In

People v. Moore, 521 N.Y.S.2d 297, 298 (N.Y. App. Div. 1987), a New York

court described the display provision under the robbery statute as

“analogous” to the display requirement in section 140.25(1)(d) of the New

York Penal Law. Similarly, in People v. Ray, 584 N.Y.S.2d 620, 621 (N.Y.

App. Div. 1992), the court applied the conscious display standard used in

robbery cases in vacating a first-degree burglary conviction. 8 In that case, a

defendant, in the course of a burglary, exited through a “side door carrying

the shotgun in both hands . . . using it to hold bags of other items in his arms.”

Id. Neither the complaining witness “nor the arresting officer testified that

they believed that they were being threatened with use of the gun.” Id. The

court found insufficient evidence that the defendant ‘“consciously

display[ed]’ the shotgun ‘with the intent of compelling an owner of property

to deliver it up or for the purpose of preventing or overcoming resistance to

the taking.’” Id. (alteration in original) (quoting Baskerville, 457 N.E.3d at

756). Even though the shotgun was visible, that visibility did not constitute

a “display” sufficient to establish culpability for burglary under New York

law.

8

Burglary in the first degree, similar to second degree burglary, can be committed when a

defendant “[d]isplays what appears to be a pistol, revolver, rifle, shotgun, machine gun or

other firearm.” N.Y. Penal Law § 140.30(4) (McKinney 1992). First degree burglary does

have the “affirmative defense that such pistol, revolver, rifle, shotgun, machine gun or other

firearm was not a loaded weapon from which a shot, readily capable of producing death or

other serious physical injury, could be discharged.” Id. However, this affirmative defense

does not “constitute a defense to a prosecution for, or preclude a conviction of, burglary in

the second degree, burglary in the third degree or any other crime.” Id. Given the plain

similarity between the statutes, the requirement of a conscious display would seem to apply

equally for first and second degree burglary. It is well-established that second degree

burglary is a lesser-included offense of first degree burglary under New York law. See

People v. Smith, 132 N.Y.S.3d 498, 500 (N.Y. App. Div. 2020) (collecting cases); People

v. Ortiz, 170 A.D.3d 892, 893 (N.Y. App. Div. 2019) (same). Here, the relevant distinction

between first and second degree burglary is that the former is of a dwelling, while the latter

of a building. Compare N.Y. Penal Law § 140.30(4), with N.Y. Penal Law § 140.25(1)(d).

A dwelling by definition is a subset of a building. See N.Y. Penal Law § 140.00(3).

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We are thus not persuaded by the respondent’s argument that a “display”

can occur without a victim present. Although section 140.25(1)(d) does not

expressly reference a victim, any uncertainty is resolved by how New York

state courts interpret the phrase “[d]isplays what appears to be” a listed

weapon. See Gill v. INS, 420 F.3d 82, 90 (2d Cir. 2005) (relying on New

York state court interpretations of its own criminal laws in applying the

categorical approach). The New York Court of Appeals has required that the

display “actually be witnessed in some manner by the victim, i.e., it must

appear to the victim by sight, touch or sound that he is threatened by a

firearm.” Baskerville, 457 N.E.2d at 756. This requirement of a conscious

display applies in burglary cases and is fully consistent with the statutory

language of section 140.25(1)(d). See Ray, 584 N.Y.S.2d at 621. New York

courts thus do not merely require a third party to be present but be an actual

victim.

We further conclude that displaying what appears to be a firearm during

the course of a burglary necessarily involves the use, attempted use, or

threatened use of physical force. In Stuckey v. United States, the Second

Circuit examined first degree robbery under New York law and held that the

display of “what appears to be” a firearm by a fellow participant in the crime

renders the offense a violent felony under the ACCA. 878 F.3d at 70–72.

The Court reasoned that, while strict liability attached to the display of the

weapon or apparent weapon, that display, coupled with the intent to commit

a crime, satisfies the “plain text” of the ACCA, which requires the offense

have as an element “the use, attempted use, or threatened use of physical

force against the person of another.” Id. at 68–71 (citation omitted).

This conclusion is consistent with decisions from across the federal

circuit courts. See, e.g., United States v. Carter, 961 F.3d 953, 958 (7th Cir.

2020) (“Brandishing a deadly weapon in the context of an assault threatens

‘force capable of causing physical pain or injury to another person.’”

(citation omitted)); United States v. Gobert, 943 F.3d 878, 881–82 (9th Cir.

2019) (rejecting an argument that “using a display of force with a dangerous

weapon that reasonably causes a victim to fear immediate bodily injury does

not necessarily require the use or threatened use of violent force against

another”).

The display of what appears to be a firearm while committing second

degree burglary is essentially a criminal threat of force or violence and

distinguishes this statute from a statute that covers only ordinary burglaries.

“[A] person who intends to, and does, place another in fear of imminent

physical injury by displaying what appears to be a deadly weapon has

communicated an intent to inflict physical harm and, thus, threatened the use

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of force.” United States v. Ovalle-Chun, 815 F.3d 222, 227 (5th Cir. 2016). 9

It is this inherent threat of violence, coupled with the intent to commit a

crime, as described in Leocal v. Ashcroft, 543 U.S. 1, 9–10 (2004), that makes

the type of burglary at issue here a confrontational crime, and brings

subsection (1)(d) within the purview of a crime of violence as described in

18 U.S.C. § 16(a). The confrontational nature of second degree burglary

under section 140.25(1)(d) of the New York Penal Law categorically

involves the use, attempted use, or threatened use of physical force.

III. CONCLUSION

We thus conclude that a conviction for displaying what appears to be a

pistol, revolver, rifle, shotgun, machine gun, or other firearm while

committing burglary under section 140.25(1)(d) of the New York Penal Law

necessarily involves the use, attempted use, or threatened use of physical

force against the person or property of another and therefore constitutes an

aggravated felony crime of violence. The respondent is therefore removable

from the United States. Termination of his removal proceedings is not

appropriate.

The respondent has not meaningfully appealed the Immigration Judge’s

summary denial of adjustment of status under section 245(a) of the INA,

8 U.S.C. § 1255(a) (2018), in conjunction with a waiver under section 212(h)

of the INA, 8 U.S.C. § 1182(h) (2018). These claims are thus waived. Matter

of Garcia, 28 I&N Dec. 693, 693 n.1 (BIA 2023).

Accordingly, the following order will be entered.

ORDER: The appeal is dismissed.

CONCURRING AND DISSENTING OPINION: Denise G. Brown,

Temporary Appellate Immigration Judge

I respectfully dissent from that portion of the majority opinion that holds

that second degree burglary under section 140.25(1)(d) of the New York

Penal Law is categorically an aggravated felony crime of violence under

section 101(a)(43)(F) of the Immigration and Nationality Act (“INA”),

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Courts have long recognized that displaying something that appears to be a weapon can

have the same consequences as displaying an actual weapon. See, e.g., United States v.

Dixon, 982 F.2d 116, 122 (3d Cir. 1992) (holding that a perpetrator who placed a towel

over her hand to give the appearance of having a gun “created a risk that [her] actions

would provoke a violent response by victims or the police”); United States v. Shores, 966

F.2d 1383, 1387 (11th Cir. 1992) (observing that “possession of a toy gun, by itself, can

play an integral part in the crime”).

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8 U.S.C. § 1101(a)(43)(F) (2018). As an initial matter, I have reservations

that this case is an appropriate means through which to establish binding

precedent on this issue as the Immigration Judge did not reach it. While the

parties have had an opportunity to address the issue through supplemental

briefing, we lack the benefit of the Immigration Judge’s reasoning. It is our

role to “review” questions of law de novo, 8 C.F.R. § 1003.1(d)(3)(ii) (2023),

but there is no underlying decision regarding whether the respondent was

convicted of an aggravated felony crime of violence for us to review here.

Further, I disagree with the majority’s analysis by which it concludes that

a violation of section 140.25(1)(d) of the New York Penal Law is

categorically a crime of violence. Section 140.25(1)(d) provides that a

person is guilty of burglary in the second degree:

when he knowingly enters or remains unlawfully in a building with intent to commit

a crime therein, and when

. . . [i]n effecting entry or while in the building or in immediate flight therefrom,

he or another participant in the crime

...

. . . [d]isplays what appears to be a pistol, revolver, rifle, shotgun, machine gun or

other firearm . . . .

N.Y. Penal Law § 140.25(1)(d) (McKinney 2017). A crime of violence

under section 101(a)(43)(F) of the INA, 8 U.S.C. § 1101(a)(43)(F), is “an

offense that has as an element the use, attempted use, or threatened use of

physical force against the person or property of another.” 18 U.S.C. § 16(a)

(2018).

I disagree with the majority that second degree burglary under section

140.25(1)(d) includes as an element the use, attempted use, or threatened use

of physical force against another person. In my view, second degree burglary

under section 140.25(1)(d) does not include any element that requires the

presence of a person other than the defendant. In the absence of an element

that requires the presence of a person, the majority’s conclusion that this

offense is a crime of violence is unavailing. See Borden v. United States,

141 S. Ct. 1817, 1825 (2021) (“The phrase ‘against another,’ when

modifying the ‘use of force,’ demands that the perpetrator direct his action

at, or target, another individual.”).

The majority’s analysis heavily relies on case law involving robbery to

support its conclusion that second degree burglary under this subsection is a

crime of violence. But under New York law, robbery always involves

forcible stealing from a person and burglary does not. In United States v.

Ojeda, 951 F.3d 66, 71 (2d Cir. 2020), the Court of Appeals for the Second

Circuit rejected the defendant’s argument that it was possible to commit New

York first degree robbery with the aggravating factor of the display of an

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apparent weapon without the use, attempted use, or threatened use of

physical force. The court held that the defendant’s argument ignored the

foundational element being aggravated, i.e., forcible stealing, which is

defined in New York to include the use or threatened immediate use of

physical force upon another person. Id. at 72. Forcible stealing is an element

for every degree of robbery in New York and “that element categorically

requires the use of physical force.” Id. Thus, New York robbery always

includes as an element the use or threatened use of physical force against

another person, regardless of whether an apparent weapon is displayed.

Accordingly, the New York robbery statutes are distinguishable from the

burglary statute at issue here, and thus the case law relied upon by the

majority relating to robbery is not persuasive in this context. For the same

reason, the case law cited by the majority relating to assault is likewise

unpersuasive.

The majority also relies on the definition of “display” in the New York

model jury instructions to conclude that a display of an apparent weapon

must be in front of a person. The majority concludes that “display” in the

context of section 140.25(1)(d) necessarily means a conscious display of an

apparent weapon to a victim. “Display” as described by the model jury

instructions does not constitute the use, attempted use, or threatened use of

physical force against another person because, as the Supreme Court

explained in Borden, “against the person of another” means “in opposition

to” and expresses “a kind of directedness or targeting” rather than being akin

to “waves crashing against the shore.” Borden, 141 S. Ct. at 1825–26.

However, the language of the model jury instructions—i.e., describing

display to be “manifest[ing] the presence of an object that can reasonably be

perceived” as a weapon—does not require the type of directedness or

targeting described in Borden. N.Y. Crim. Jury Instr. & Model Colloquies,

Penal Law § 140.25(1)(d) (May 2018). The language instead appears to

contemplate that a person be “the mere recipient” of the display. Borden,

141 S. Ct. at 1826.

Even if the majority’s conclusion were correct that display of an apparent

weapon necessarily contemplates the presence of a person to perceive it and

that it necessarily involved conduct directed at another person as

contemplated by Borden—a conclusion not supported by the actual language

of section 140.25(1)(d)—there is nothing in the statute that requires the

person perceiving the display to be the victim of the crime, rather than a

bystander or another defendant.

The majority’s conclusion that an offense under section 140.25(1)(d) is

categorically a crime of violence also assumes that the crime a defendant

intends to commit is necessarily a “confrontational crime.” But there is

nothing in the statute that connects the display of an apparent weapon with

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the crime the defendant has “intent to commit [in the building],” and thus

nothing in the statute that requires the crime a defendant has “intent to

commit [in the building]” to be a confrontational crime, as the majority

concludes. N.Y. Penal Law § 140.25.

For these reasons, I am not persuaded by the majority’s conclusion that

an offense under section 140.25(1)(d) of the New York Penal Law is

categorically a crime of violence. I would instead conclude that it is not and

that therefore the respondent is not removable as charged.

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