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Interim Decision #3744

Matter of Roderick B. LANFERMAN, Respondent

Decided March 9, 2012

U.S. Department of Justice

Executive Office for Immigration Review

Board of Immigration Appeals

A criminal statute is divisible, regardless of its structure, if, based on the elements of the

offense, some but not all violations of the statute give rise to grounds for removal

or ineligibility for relief.

FOR RESPONDENT: Adam Paskoff, Esquire, New York, New York

FOR THE DEPARTMENT OF HOMELAND SECURITY: Steven J. Connelly, Assistant

Chief Counsel

BEFORE: Board Panel: COLE, PAULEY, and WENDTLAND, Board Members.

PAULEY, Board Member:

This case was last before us on June 22, 2006, when we dismissed the

respondent’s appeal from the Immigration Judge’s decision of March 18, 2005,

ordering him removed from the United States under section 237(a)(2)(C)

of the Immigration and Nationality Act, 8 U.S.C. § 1227(a)(2)(C) (2000),

as an alien convicted of a firearms offense. The factual basis for the finding

of removability was the respondent’s 1996 conviction for menacing in the

second degree in violation of section 120.14 of the New York Penal Law.

On August 5, 2009, the United States Court of Appeals for the Second Circuit

remanded the case for us “to decide the initial issue of whether Section 120.14

of the New York Penal Law is divisible under the modified categorical

approach.” Lanferman v. Bd. of Immigration Appeals, 576 F.3d 84, 86 (2d Cir.

2009). Upon consideration of this issue, we again conclude that the

respondent is removable as charged and will dismiss his appeal.

I. FACTUAL AND PROCEDURAL HISTORY

The respondent is a native and citizen of Guyana who was admitted

to the United States as a lawful permanent resident on December 24, 1990.

On August 8, 1996, he was convicted in the Criminal Court of the City

of New York, County of Bronx, New York, of menacing in the second degree

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in violation of section 120.14 of the New York Penal Law. Based on this

conviction, the respondent was charged under section 237(a)(2)(C) of the Act,

and the Immigration Judge found him removable in a decision dated

May 29, 2003. The respondent applied for cancellation of removal under

section 240A(a) of the Act, 8 U.S.C. § 1229b(a) (2000), which was denied

by the Immigration Judge in the exercise of his discretion. Following the

respondent’s appeal, we remanded the record in a decision dated September 7,

2004, which resulted in the Immigration Judge’s decision of March 18, 2005.

In our June 22, 2006, decision, we dismissed the respondent’s appeal, finding

that he was removable and that his application for cancellation of removal was

properly denied as a matter of discretion.

II. ANALYSIS

The Second Circuit has identified three analytical approaches to potentially

divisible statutes. Lanferman v. Bd. of Immigration Appeals, 576 F.3d

at 90-92 (citing Dulal-Whiteway v. U.S. Dep’t of Homeland Sec., 501 F.3d 116

(2d Cir. 2007), abrogated on other grounds by Nijhawan v. Holder, 557 U.S.

29 (2009), and James v. Mukasey, 522 F.3d 250 (2d Cir. 2008)). Under the

first approach, divisibility would be permitted “where the alternative means

of committing a violation are enumerated as discrete alternatives, either by use

of disjunctives or subsections.” Id. at 90. Under the second approach,

divisibility would be permitted “where the statute of conviction is phrased

in the disjunctive or divided into subsections, or where the immigration statute

invites inquiry into the facts of the underlying conviction at issue.” Id.

at 91-92 (citing Singh v. Ashcroft, 383 F.3d 144, 148 (3d Cir. 2004)).

Under the third approach, divisibility would be permitted 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 90 (quoting Dulal-Whiteway v. U.S. Dep’t

of Homeland Sec., 501 F.3d at 128) (internal quotation marks omitted).

The issue before us, under the terms of the remand, is which of these

approaches is most suitable for application in the immigration context. For the

following reasons, we adopt the third approach.

A. Background on Divisibility

The question of a criminal statute’s divisibility arises in the application

of the categorical approach to determine whether an offense prohibited by the

statute in question comes within a specific ground of removability. See Taylor

v. United States, 495 U.S. 575 (1990); see also Shepard v. United States, 544

U.S. 13 (2005). In its original form, the categorical approach limited the

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Interim Decision #3744

analysis of the alien’s removability to the criminal statute of conviction, with

no consideration of the underlying conduct on which the conviction may have

been based. See Taylor v. United States, 495 U.S. at 600; see also Matter

of Babaisakov, 24 I&N Dec. 306, 310-11 (BIA 2007). However, the Court

subsequently made clear in Shepard that where a statute was effectively

divisible, documents that are part of the record of conviction, such as the

charging instrument, jury instructions, or, in the case of a plea, the plea

transcript, could be used to demonstrate that the defendant was convicted

of a particular type of violation. This inquiry has come to be known as the

modified categorical approach.

The principal purpose served by the categorical approach is to limit the

inquiry to what crime the offender was necessarily convicted of (as opposed

to the offender’s underlying conduct) and, thus, to avoid ad hoc mini-trials

on whether an offender’s conduct was more or less culpable than what his

actual conviction required. See Taylor v. United States, 495 U.S. at 600-02;

Garcia v. Holder, 638 F.3d 511, 517 (6th Cir. 2011); United States v. Piccolo,

441 F.3d 1084, 1087 (9th Cir. 2006). Originally, the categorical approach was

deemed to involve a purely abstract inquiry into the categorical nature of the

elements of a criminal statute. But recently the Supreme Court has engrafted

a threshold inquiry that requires an initial determination whether the

breadth of conduct covered by a criminal statute in its actual application

is such that there is a “realistic probability” that the statute would

be successfully employed to prosecute the conduct at issue. See Gonzales

v. Duenas-Alvarez, 549 U.S. 183, 193 (2007) (applying the “realistic

probability” standard to the categorical determination of an aggravated felony

in the immigration context); see also James v. United States, 550 U.S. 192,

208 (2007); Matter of Silva-Trevino, 24 I&N Dec. 687, 697-98 (A.G. 2008)

(applying the same threshold inquiry to determinations whether a conviction

is for a crime involving moral turpitude).

The circuit courts have not uniformly applied the modified categorical

approach in the immigration context. See, e.g., Conteh v. Gonzales, 461

F.3d 45, 54-57 (1st Cir. 2006). However, they all agree on one aspect

of the modified categorical approach, namely, that its functional purpose

is to determine when documents in an alien’s record of conviction may

be considered to ascertain if the crime at issue falls within the class of offenses

defined by the applicable provision of inadmissibility under section 212 of the

Act, 8 U.S.C. § 1182 (2006), or removability under section 237.1

1

The Supreme Court has stated that in the context of a nonjury conviction, the Board, the

Immigration Judges, and the Federal courts may consider, as evidence in the record

(continued...)

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Interim Decision #3744

The divisibility calculus, which is implicated by the modified categorical

approach, requires that we carefully examine the State or Federal law at issue

to understand how a particular offense is prosecuted—that is, what elements

must be shown beyond a reasonable doubt (including sentencing factors

in some instances). We view a criminal statute as divisible only if, based

on the elements of the offense, some but not all violations of the statute give

rise to grounds for removal or ineligibility for relief.2 See, e.g., Matter

of Vargas, 23 I&N Dec. 651, 654 (BIA 2004).

Sometimes this simply requires the adjudicator to look at the alien’s

criminal record to determine whether his crime “matches” the elements that

define the offense of removal, such as burglary in the aggravated felony

definition. At other times, the removal provision does not refer to a specific

offense like burglary with a settled generic definition but instead creates

an imprecise standard that must be compared to the elements of a State

or Federal offense. For example, section 101(a)(43)(F) of the Act, 8 U.S.C.

§ 101(a)(43)(F) (2006), defines the term aggravated felony to mean certain

“crimes of violence” under 18 U.S.C. § 16 (2006). In turn, § 16(b) defines

a crime of violence as a felony offense that “by its nature, involves

a substantial risk that physical force against the person or property of another

may be used in the course of committing the offense.”

Unlike a “burglary offense,” this “crime of violence” definition does not

contain discrete elements that are tied to specific facts. Rather, a crime

of violence is defined in probabilistic terms by reference to the level of “risk”

that inheres in the crime “by its nature.” When applied to this kind of Federal

standard, the categorical approach still focuses on the “elements” of the

alien’s crime in a sense, but it no longer contemplates a matching

of elements. Instead, the inquiry focuses more loosely on whether the

alien’s crime fits within a discrete category of offenses that would

ordinarily be expected to present the risk described in 18 U.S.C. § 16(b).

See, e.g., Chambers v. United States, 555 U.S. 122 (2009); Begay

v. United States, 553 U.S. 137 (2008); James v. United States, 550 U.S. at 208;

Van Don Nguyen v. Holder, 571 F.3d 524, 530 (6th Cir. 2009). Such

(...continued)

of conviction, the “charging document,” the “terms of the plea agreement,” the “transcript

of colloquy between judge and defendant,” or “some comparable judicial record”

of information about the “factual basis for the plea.” Gonzales v. Duenas-Alvarez, 549 U.S.

at 187 (quoting Shepard v. United States, 544 U.S. at 26) (internal quotation marks omitted).

2

An element is a fact that, in a criminal prosecution, must be proved beyond a reasonable

doubt to convict or to impose an enhanced sentence. See, e.g., Apprendi v. New Jersey, 530

U.S. 466, 472 (2000); In re Winship, 397 U.S. 358, 361 (1970); Matter of Eslamizar,

23 I&N Dec. 684, 688 (BIA 2004).

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Interim Decision #3744

imprecise standards are subject to disagreement by reasonable minds and

therefore complicate the divisibility analysis.

B. First Approach

In the first formulation described by the Second Circuit, the modified

categorical approach may only be applied if certain structural or grammatical

statutory characteristics are present on the face of the statute of conviction,

such as the enumeration of a list of qualifying alternative elements in discrete

subsections or the separation of various means of committing the offense

within disjunctively divided words or phrases. The Fifth Circuit has followed

this formulation in several cases. See, e.g., Amouzadeh v. Winfrey, 467 F.3d

451, 455 (5th Cir. 2006); Larin-Ulloa v. Gonzales, 462 F.3d 456 (5th Cir.

2006). However, we find this methodology unnecessarily formulaic and

confining as regards the appropriate purposes to be served by the modified

categorical approach in the immigration context.

In our view, the structural design of a criminal statute is frequently

of limited relevance to how the statute is interpreted by the courts charged with

its application and thus is, at best, just a starting point from which a full

explication of the statute may be developed. Commonly, the breadth

of application of the statute is a function of the inclusiveness of its terms

or of how it has been interpreted within a larger statutory, decisional, and

common law framework by the courts of the controlling jurisdiction.3

3

When examining the law of the prosecuting jurisdiction, it is paramount to understand

that the “elements” of an offense will not always be clearly set forth within the four corners

of a single criminal statute. The adjudicator therefore must look beyond the statutory

language to other parts of the law of the prosecuting jurisdiction. For example, many

statutes delineate crimes by using general terms—such as “controlled substance” or “deadly

weapon”—which can only be understood by looking to other definitional statutes,

or perhaps case law. Furthermore, courts sometimes put judicial “glosses” on statutory

terms, changing their meaning in subtle (or not so subtle) ways. See, e.g., People

v. Mansfield, 245 Cal. Rptr. 800, 802 (Cal. Ct. App. 1988) (holding that although section

242 of the California Penal Code defines “battery” to require “force or violence” against

another, “[t]he word ‘violence’ has no real significance”). Moreover, in a number

of jurisdictions, criminal statutes do not define offense elements at all, but instead leave that

task to the courts. See, e.g., Zimmerman v. Commonwealth, 585 S.E.2d 538, 539 (Va. 2003)

(“In this jurisdiction, we adhere to the common law definition of assault, there having been

no statutory change to the crime.”); State v. Byrd, 887 P.2d 396, 399 (Wash. 1995)

(“Because ‘assault’ is not defined in the statute, courts resort to the common law for

(continued...)

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Interim Decision #3744

We agree that a statute containing discrete subsections or provisions phrased

in the disjunctive is divisible. See, e.g., Oouch v. U.S. Dep’t of Homeland

Sec., 633 F.3d 119, 122 (2d Cir. 2011) (acknowledging that it is settled law

in the Second Circuit that a statute drafted as discrete offenses in a disjunctive

list is divisible if one or more offenses in the list, but not all, are grounds for

removal). However, we find that such statutes fail to fully describe the

category of divisible statutes, given the variations in criminal laws from

jurisdiction to jurisdiction. Thus, we decline to adopt the first formulation set

forth by the Second Circuit.

C. Second Approach

The second of the divisibility approaches presented for our consideration

by the Second Circuit was developed by the Third Circuit in Singh v. Ashcroft,

383 F.3d 144. Under this formulation, the modified categorical approach

is applied when either (1) the statute of conviction is phrased in the

disjunctive or divided into subsections such that some variations of the crime

of conviction meet the requisites for removability under the immigration laws

and others do not, or (2) the relevant removability provision “invite[s] inquiry

into the facts underlying the conviction.” Id. at 161-62; see also Stubbs

v. Att’y Gen. of U.S., 452 F.3d 251, 254-55 (3d Cir. 2006).

The first prong of this approach is very like, if not identical to, the

structural approach proposed in the first formulation. The second prong

supplements the divisibility definition by looking, not to the statute

of conviction, but to whether the ground of removability “invites inquiry” into

the underlying facts. In Singh v. Ashcroft, 383 F.3d at 161, the Third Circuit

specifically identified the qualifier in section 101(a)(43)(M)(i) of the Act,

“in which the loss to the victim or victims exceeds $10,000,” as the

“prototypical example” of an enumerating statute that invites further factual

inquiry.

We do not believe that this second prong of the Third Circuit’s approach

involves a divisibility analysis. In actuality, the issue addressed by the second

prong is better defined as whether the categorical approach applies at all where

a ground of removability contains an aspect that must be established, but

which is not an element of the statute of conviction. An example of such

an inquiry is whether an offense involves fraud or deceit in which the loss

(...continued)

definitions.”). In still other cases, elements can be found in mandatory sentencing

statutes or guidelines. See Apprendi v. New Jersey, 530 U.S. 466; see also

Matter of Martinez-Zapata, 24 I&N Dec. 424 (BIA 2007).

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Interim Decision #3744

to a victim exceeds $10,000 or more and therefore is an aggravated felony

under section 101(a)(43)(M)(i) of the Act. In its unanimous decision

in Nijhawan v. Holder, 557 U.S. 29 (2009), the Supreme Court held that

nonelement aspects of a removability ground, such as the $10,000 loss

provision, are not subject to the categorical approach. They are instead subject

to a “circumstance-specific” approach that allows inquiry into the facts

underlying the conviction without regard to the confines of the modified

categorical approach. See also Matter of Babaisakov, 24 I&N Dec. 306. Thus,

Nijhawan has cast considerable doubt upon the Third Circuit’s second prong

of its divisibility formulation.

Even disregarding that Nijhawan has fully resolved the question of the

applicability of the categorical approach in the particular context of the

$10,000 loss provision at issue there and in Singh,4 we are not inclined

to adopt the Third Circuit’s unique approach. We do not regard the “invites

inquiry” standard as a useful one, since whether or not a statute contains

an “invitation” appears to be an inexact concept that manifests itself primarily

in the eye of the beholder. It is thus unclear to what statutes of conviction that

are not divided into subsections or phrased disjunctively, if any, the Third

Circuit would apply the “invites inquiry” formulation.

D. Third Approach

Under the Second Circuit’s third formulation, divisibility would

be permitted 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.” Lanferman v. Bd. of Immigration

Appeals, 576 F.3d at 90 (quoting Dulal-Whiteway v. U.S. Dep’t of Homeland

Sec., 501 F.3d at 128) (internal quotation marks omitted). We conclude that

this broadest of the three formulations should be adopted in the immigration

context because it best serves the purposes undergirding the categorical

approach.

Many circuit courts have treated statutes as divisible regardless of their

structure.5 Dulal-Whiteway v. U.S. Dep’t of Homeland Sec., 501 F.3d at 128.

4

In Nijhawan, the Court identified other aggravated felony provisions that contain

circumstance-specific aspects to which the categorical approach is inapplicable,

including section 101(a)(43)(K)(ii) of the Act, which provides that an aggravated felony

for transportation for the purpose of prostitution must be “committed for commercial

advantage.”

5

Numerous examples demonstrate the courts’ application of a modified categorical

approach to criminal statutes of varying structure and construction with little or no regard

(continued...)

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This is consistent with our longstanding practice, because we have

traditionally applied divisibility analysis to all manner of statutes, regardless

of their structure. See, e.g., Matter of Sanudo, 23 I&N Dec. 968, 969, 972-73

(BIA 2006) (applying the modified categorical approach to a single-sentence

criminal battery statute that was not divided into discrete subsections);

see also Matter of Babaisakov, 24 I&N Dec. at 312 (“[O]ur published law

applies either a categorical or a divisibility analysis, where the actual elements

leading to conviction are the determining factor for removal charges hinging

on a conviction for a crime.”).6 Importantly, as the Second Circuit itself

recognized in Dulal-Whiteway, 501 F.3d at 128, this approach appears also

to reflect the understanding of the Supreme Court since, in both Taylor and

Shepard, the Court, “by proceeding to examine the individual’s record

of conviction, implicitly assumed what we now refer to as the statute’s

divisibility.”

Adopting the broadest of the three outlined approaches is also consistent

with the view we share with some courts of appeals that the categorical

approach itself need not be applied with the same rigor in the immigration

context as in the criminal arena, where it was developed. See Conteh

v. Gonzales, 461 F.3d at 55-56 (noting several differentiating factors between

the criminal and immigration contexts that warrant not applying the categorical

approach in the same manner); see also Ali v. Mukasey, 521 F.3d 737 (7th Cir.

2008).7 In that regard, we further note that the Second Circuit itself has taken

(...continued)

for the statute’s grammar or structure. See, e.g., United States v. Fife, 624 F.3d 441, 444-47

(7th Cir. 2010); United States v. Medina-Almaguer, 559 F.3d 420, 421-22 (6th Cir. 2009);

Suazo Perez v. Mukasey, 512 F.3d 1222, 1225-26 (9th Cir. 2008); Vargas v. Dep’t

of Homeland Sec., 451 F.3d 1105, 1108-09 (10th Cir. 2006); Jaggernauth v. U.S. Att’y Gen.,

432 F.3d 1346, 1354-55 (11th Cir. 2005); Soliman v. Gonzales, 419 F.3d 276, 284 (4th Cir.

2005); Emile v. INS, 244 F.3d 183, 187-89 (1st Cir. 2001); Vue v. INS, 92 F.3d 696, 699-700

(8th Cir. 1996); accord United States v. Llanos-Agostadero, 486 F.3d 1194, 1197 (11th Cir.

2007).

6

In the context of the predecessor statute to section 237(a)(2)(C) of the Act, we have found

divisibility where the alternative means of committing a firearms offense were not

enumerated as discrete alternatives in the State statute. See Matter of Pichardo, 21 I&N

Dec. 330, 333-34 (BIA 1996) (finding divisible a New York statute containing five

subdivisions, the first of which could, but did not necessarily, involve a firearms-related

possession violation); see also Matter of Madrigal, 21 I&N Dec. 323 (BIA 1996) (finding

divisible a New York statute containing five subdivisions, the third of which involved a

firearm, and the first of which could, but did not necessarily, involve a firearms conviction).

7

The Second Circuit has stated in dicta that it is not required to give deference to our

interpretation of State or Federal criminal statutes since the Board is not charged with the

(continued...)

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Interim Decision #3744

the position that the outcome of a categorical inquiry “may be different when

defining aggravated felonies in the immigration context than in the sentencing

context.” Martinez v. Mukasey, 551 F.3d 113, 118 (2d Cir. 2008); see also

Lopez v. Gonzales, 549 U.S. 47, 52 n.3 (2006) (noting the Second Circuit’s

bifurcated approach). In view of the court’s bifurcated approach to defining

the substance of certain aggravated felonies for purposes of immigration and

criminal law, it may well take a similar approach with respect to divisibility.

Therefore, even if the Second Circuit endorses a more restrictive approach

in the criminal law arena, our adoption of the broadest approach to divisibility

in interpreting the immigration laws may be appropriate.

A recent decision of the Ninth Circuit supports this broad approach

to divisibility. In United States v. Aguila-Montes de Oca, 655 F.3d 915 (9th

Cir. 2011) (en banc), the Ninth Circuit overruled prior precedents and held,

over a dissent, that a statute need not be divisible in order for the modified

categorical approach to be properly utilized. Rather, the court determined that

while divisible statutes always suffice to permit application of the modified

categorical approach, such an approach is also appropriate where the

finder of fact is shown to have necessarily found (for example, through

a plea colloquy) a fact or facts that generically satisfy the elements

of a species of offense (or, for immigration purposes, a ground of removability

or inadmissibility). Thus, the Ninth Circuit would not limit recourse to the

modified categorical approach to circumstances where a statute contained

discrete subsections or provisions.8

In light of the foregoing, we adopt the third, and most expansive, of the

three alternative divisibility approaches presented by the Second Circuit

in Lanferman.

(...continued)

administration of such statutes. Lanferman v. Bd. of Immigration Appeals, 576 F.3d at 88;

James v. Mukasey, 522 F.3d at 253-54, 256. However, in light of our determination that the

categorical approach, including the modified categorical approach, need not apply to the

same extent in immigration proceedings as it does in the criminal context, deference may

be due when the Board or the Attorney General seeks to apply a uniform divisibility

approach for immigration purposes. See generally Nat’l Cable & Telecomms. Ass’n

v. Brand X Internet Servs., 545 U.S. 967 (2005); see also Conteh v. Gonzales, 461 F.3d at 52

n.3 (noting that “the BIA’s choice of methodology [as to divisibility] might be regarded as

an interpretation of the INA and, thus, entitled to a degree of judicial deference”). We need

not decide here, however, whether we are obliged to follow the approaches in circuits, such

as the Third and Fifth, that may diverge from ours.

8

We decline to comment further on Aguila Montes de Oca because it has not yet been the

subject of significant application within the Ninth Circuit, nor has it been addressed by other

circuits. In any case, it is outside the purview of the remand in this case.

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E. Application of the Divisibility Approach to the Respondent’s Case

Applying this divisibility approach, we conclude that the respondent

is removable under section 237(a)(2)(C) of the Act as an alien convicted

of a firearms offense based on his conviction for menacing in the second

degree in violation of section 120.14 of the New York Penal Law. When the

respondent committed this offense, section 120.14 provided as follows:

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;9 or

2. 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

3. 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 or section 530.12 of the

criminal procedure law which directed the respondent or defendant to stay away

from the person or persons on whose behalf the order was issued.

The police complaint against the respondent specified that he was

alleged to have violated section 120.14(1) by placing his victim in reasonable

fear of injury or death by displaying and pointing a revolver at her.

See People v. Dreyden, 931 N.E. 2d 526 (Ct. App. N.Y. 2010) (indicating that

a valid police complaint is a permissible charging document under New York

law). During his plea colloquy, the respondent admitted that he committed the

offense of menacing in that he did “pull out a revolver and point the revolver

at the complainant . . . and menace her with that weapon.”

Based on the respondent’s conviction, the Immigration Judge found him

deportable under section 237(a)(2)(C) of the Act, which provides as follows:

9

The term “deadly weapon” was defined as “any loaded weapon from which a shot, readily

capable of producing death or other serious physical injury, may be discharged,

or a switchblade knife, gravity knife, pilum ballistic knife, metal knuckle knife, dagger,

billy, blackjack, or metal knuckles.” N.Y. Penal Law § 10.00(12) (McKinney 1996). The

term “dangerous instrument” was defined as “any instrument, article or substance, including

a ‘vehicle’ . . . , which, under the circumstances in which it is used, attempted to be used

or threatened to be used, is readily capable of causing death or other serious physical

injury.” N.Y. Penal Law § 10.00(13).

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Any alien who at any time after admission is convicted under any law

of purchasing, selling, offering for sale, exchanging, using, owning, possessing,

or carrying, or of attempting or conspiring to purchase, sell, offer for sale,

exchange, use, own, possess, or carry, any weapon,10 part, or accessory which

is a firearm or destructive device (as defined in section 921(a) of title 18,

United States Code) in violation of any law is deportable.11

In our decision of June 22, 2006, we affirmed that removability finding,

concluding “that the plea colloquy and the criminal complaint are sufficient

to support the Immigration Judge’s finding that the respondent was convicted

under section 120.14(1) of the New York Penal Law and is removable under

section 237(a)(2)(C) of the Act.”

Section 120.14 of the New York Penal Law is not a pure firearms statute

that outright punishes possessing or carrying a firearm. Indeed, only the first

subsection may involve firearms, as contemplated by section 237(a)(2)(C)

of the Act. The second subsection is commonly referred to as an anti-stalking

provision, and the third involves the violation of a protection order.

While there is no dispute that the second and third subsections do not

“encompass convictions of crimes for which possessing or carrying firearms

is an element,” there is likewise no dispute that the respondent was convicted

under section 120.14(1). Kuhali v. Reno, 266 F.3d 93, 103 (2d Cir. 2001)

(stating that section 237(a)(2)(C) of the Act “encompass[es] convictions

of crimes for which possessing or carrying firearms is an element”);

10

We assume arguendo that the issue whether a weapon is a firearm for purposes of section

237(a)(2)(C) of the Act is not subject to the circumstance-specific approach set forth

in Nijhawan v. Holder, 557 U.S. 29. The Second Circuit observed in Lanferman v. Bd.

of Immigration Appeals, 576 F.3d at 89 n.3, that, in contrast to section 101(a)(43)(M)(i),

which was at issue in Nijhawan, section 237(a)(2)(C) “describes a generic crime, and does

not require the ‘particular circumstances’ analysis.” See also id. at 92 n.9 (stating that

section 237(a)(2)(C) “falls on the ‘generic crime’ side of the equation”). The Second Circuit

further observed that unlike section 101(a)(43)(M)(i), section 237(a)(2)(C) “does not

contain words such as ‘in which’ that would modify the offense so as to indicate that the

statute’s reference to a firearm is circumstance-specific.” Id. These observations are

supported by Board and circuit court decisions discussing whether certain weapons fall

within the Federal definition of a “firearm,” as required by section 237(a)(2)(C) of the Act.

See, e.g., Awad v. Gonzales, 494 F.3d 723, 727 (8th Cir. 2007); Matter of Mendez-Orellana,

25 I&N Dec. 254 (BIA 2010).

11

Section 237(a)(2)(C) of the Act is interpreted broadly. See Valerio-Ochoa v. INS, 241

F.3d 1092, 1095 (9th Cir. 2001) (“From a plain reading of [section 237(a)(2)(C) ], it is clear

that Congress intended to embrace the entire panoply of firearms offenses.”); Hall v. U.S.

INS, 167 F.3d 852, 855 (4th Cir. 1999) (“[The firearms statute’s] comprehensive list

of gerunds captures all varieties of conduct relating to firearms transactions. . . . This

wide-ranging text evinces an expansive purpose—to render deportable those aliens that

commit firearms offenses of any type.”).

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see also Matter of Pichardo, 21 I&N Dec. 330 (BIA 1996); Matter

of Lopez-Amaro, 20 I&N Dec. 668 (BIA 1993), aff’d, 25 F.3d 986 (11th

Cir.1994).

Section 120.14(1) provides that a person is guilty of menacing in the

second degree when 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. Under

New York law, the following three elements must be proven beyond

a reasonable doubt for a conviction to lie under section 120.14(1):

(1) That the defendant . . . displayed a deadly weapon, dangerous instrument, or what

appears to be a pistol, revolver, rifle, shotgun, machine gun or other firearm to [the

victim];

(2) That the display of such deadly weapon, dangerous instrument, or what

appeared to be a pistol, revolver, rifle, shotgun, machine gun, or other firearm

by the defendant . . . placed the victim . . . in reasonable fear of physical injury,

serious physical injury or death; and

(3) That the defendant . . . intentionally placed or attempted to place [the victim]

in reasonable fear of physical injury, serious physical injury, or death.

Charges to the Jury and Requests to Charge in a Criminal Case in New York,

§ 54:2. Second degree—Displaying weapon—Model charge, available

at CTJNY § 54:2 (Westlaw Oct. 2011).

Section 120.14(1) is itself divisible because the “deadly weapon” may

or may not be a firearm under 18 U.S.C. § 921(a). See N.Y. Penal Law

§ 10.00(12) (McKinney 1996) (defining a deadly weapon, in part, as “any

loaded weapon from which a shot . . . may be discharged”). In other words,

the statute contains an element—use of a “deadly weapon”—that could

be satisfied by removable conduct—that is, possession or carrying of “any

loaded weapon from which a shot . . . may be discharged.” However, it also

contains elements that are satisfied by conduct that would not render the

respondent removable. For example, the use of a knife or some forms

of a “dangerous instrument,” such as a vehicle, to commit a violation would

not be a removable offense under section 237(a)(2)(C) of the Act because

the use of a firearm, as defined in 18 U.S.C. § 921(a), is not involved.

See N.Y. Penal Law § 10.00(12) (including knives in the definition

of a “deadly weapon”), § 10.00(13) (defining a “dangerous instrument”).

Moreover, the use of “what appears to be a pistol” to commit a violation

would also not be a removable offense under section 237(a)(2)(C), because

a plastic water pistol, for example, is not a firearm under 18 U.S.C. § 921(a).

Because section 120.14(1) can result in a categorical match or mismatch

of elements when compared with section 237(a)(2)(C) of the Act, it is

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divisible, regardless of the fact that not one of the three subdivisions standing

alone is categorically a firearms offense under section 237(a)(2)(C).

As previously noted, the complaint charged the respondent with violating

section 120.14(1) by placing his victim in reasonable fear of injury or death

by displaying and pointing a revolver at her. During his plea colloquy, the

respondent admitted that he committed the offense of menacing in that he did

“pull out a revolver and point the revolver at the complainant . . . and menace

her with that weapon.” Thus, because both the complaint, which served as the

charging instrument, and the plea colloquy are properly considered under

the modified categorical approach and establish that the “deadly weapon”

at issue was a firearm, we find that the respondent is removable under

section 237(a)(2)(C) of the Act.12 Accordingly, the respondent’s appeal will

be dismissed.13

ORDER: The appeal is dismissed.

12

Neither the complaint nor the plea colloquy specifically alleges that the firearm was

“loaded,” which would appear necessary for it to meet the definition of a “deadly weapon”

under New York law. See supra note 9. However, whether the firearm was loaded or not

is irrelevant to the ground of removability under section 237(a)(2)(C), and we cannot look

behind the conviction itself. Moreover, it may well be that an unloaded firearm would

constitute a “dangerous instrument” and therefore support the conviction.

13

The respondent also argues that his conviction is invalid under the Supreme Court’s

decision in Padilla v. Kentucky, 130 S. Ct. 1473 (2010), and requests that we revisit sua

sponte our previous affirmance of the Immigration Judge’s denial of cancellation of removal

in the exercise of discretion. We decline to address these issues because they are beyond

the scope of the Second Circuit’s remand. We also have no jurisdiction over the question

whether the respondent’s conviction is valid.

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