IMAGE: Wikimedia Commons
BIA HEADNOTE:
(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 [majority opinion]
Judge Brown’s Dissent:
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”), 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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Thanks for speaking out, Judge Brown, against the BIA’s one-sided approach to statutory interpretation that almost always favors DHS over better and more reasonable interpretations offered by individuals. Then, the Article III Courts compound the problem by giving “Chevron deference” to the BIA’s one-sided jurisprudence!
Dissent matters!
Here’s Judge Brown’s official EOIR bio:
Denise G. Brown
Attorney General Merrick B. Garland appointed Denise G. Brown as a temporary Appellate Immigration Judge in July 2021. Judge Brown earned a Bachelor of Arts in 1992 from the University of Michigan, Ann Arbor, and a Juris Doctor in 1995 from the Catholic University of America. From July 2007 to July 2021, she has served as an attorney advisor, Board of Immigration Appeals, Executive Office for Immigration Review. During this time, from March to September 2019, she served on detail as a Special Assistant U.S. Attorney, U.S. Attorney’s Office, Eastern District of Virginia, and from January to July 2017, she served on detail as a temporary Immigration Judge at the Headquarters Immigration Court, EOIR. From December 1999 to July 2007, she served as an Associate General Counsel at the Office of General Counsel, Department of the Air Force. Judge Brown is a member of the District of Columbia Bar.
🇺🇸 Due Process Forever!
PWS
05-27-23
