Henry v. BICE

Opinions of the United
2007 Decisions States Court of Appeals
for the Third Circuit

7-11-2007

Henry v. BICE
Precedential or Non-Precedential: Precedential

Docket No. 05-3064

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 PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT

No. 05-3064

DERICK ANTHONY HENRY,
Petitioner

v.

BUREAU OF IMMIGRATION AND
CUSTOMS ENFORCEMENT,
Respondent

On Petition for Review of Final Decision of the
Board of Immigration Appeals
(BIA No. A42-259-751)
Immigration Judge: Walter Durling

Argued April 12, 2007
Before: SMITH and COWEN, Circuit Judges,
and YOHN, District Judge*

*
The Honorable William H. Yohn Jr., Senior District Judge
for the Eastern District of Pennsylvania, sitting by designation.
 (Filed: July 11, 2007)

RONALD P. SCHILLER, ESQUIRE
JACQUELINE R. DUNGEE, ESQUIRE (ARGUED)
DLA PIPER US LLP
One Liberty Place
1650 Market Street, Suite 4900
Philadelphia, PA 19103
Attorneys for Petitioner

LINDA S. WERNERY, ESQUIRE
DOUGLAS E. GINSBURG, ESQUIRE
THANKFUL T. VANDERSTAR, ESQUIRE
ALISON M. IGOE, ESQUIRE
JOHN D. WILLIAMS, ESQUIRE
ADA E. BOSQUE, ESQUIRE (ARGUED)
United States Department of Justice
Office of Immigration Litigation
P.O. Box 878
Ben Franklin Station
Washington, DC 20044
Attorneys for Respondent

___________________

OPINION OF THE COURT
___________________

2
YOHN, District Judge.
Derick A. Henry petitions for review of a final order by
the Board of Immigration Appeals (“BIA”) that ordered Henry
removed. The BIA held that Henry’s conviction of criminal
possession of a weapon in the second degree under New York
Penal Law Section 265.03 (“§ 265.03”) constitutes a crime of
violence under 18 U.S.C. § 16(b) and, therefore, an aggravated
felony supporting removal. For the reasons stated herein, we
will affirm the BIA and deny Henry’s petition for review.
I. Factual and Procedural History
Henry is a native of Jamaica and has been a lawful
permanent resident since January 3, 1990. In 2000, Henry was
arrested in New York and subsequently pleaded guilty to
criminal possession of a weapon in the second degree under §
265.03. The specific charge in the Indictment to which Henry
pleaded guilty stated: “The defendant, in the County of
Westchester and State of New York, on or about April 8, 1999,
did possess a loaded firearm, to wit, a .357 Magnum caliber
Astro revolver, with intent to use the same unlawfully against
another person. This is an Armed Felony Offense.” Section
265.03 provides:
A person is guilty of criminal possession of a
weapon in the second degree when:
(1) with intent to use the same unlawfully against
another, such person:
(a) possesses a machine-gun; or

3
 (b) possesses a loaded firearm; or
(c) possesses a disguised gun; or
(2) such person possesses five or more firearms; or
(3) such person possesses any loaded firearm.
Such possession shall not, except as provided in
subdivision one or seven of section 265.02 of this
article, constitute a violation of this subdivision if
such possession takes place in such person’s
home or place of business.
Criminal possession of a weapon in the second degree is
a class C felony. § 265.03. Henry was sentenced to four years
of imprisonment.
Based on this conviction, the Department of Homeland
Security (“DHS”) charged Henry with removabilty pursuant to
8 U.S.C. § 1227(a)(2)(C) for possession of a firearm and
pursuant to § 1227(a)(2)(A)(iii) as an aggravated felon.1 Section

1
The provisions pursuant to which Henry was charged with
removabilty state, in relevant part:
(a) Classes of deportable aliens. Any alien
(including an alien crewman) in and admitted to
the United States shall, upon the order of the
Attorney General, be removed if the alien is
within one or more of the following classes of
deportable aliens:
....
(2) Criminal offenses.

4
240(A) of Immigration and Nationality Act, 8 U.S.C. § 1229b,
allows for the cancellation of removal of certain permanent
residents, but specifically precludes cancellation in the case of
an alien who has been convicted of an aggravated felony. The
term “aggravated felony” is defined by 8 U.S.C. § 1101(a), and
includes a crime of violence, as defined by 18 U.S.C. § 16. See
§ 1101(a)(43)(F).
The Immigration Judge (“IJ”) found Henry removable for
having been convicted of a firearms offense but, after reviewing

(A) General crimes.
....
(iii) Aggravated felony. Any alien who is
convicted of an aggravated felony at any time
after admission is deportable.
....
(C) Certain firearm offenses. 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, 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.

8 U.S.C. § 1227(a)(2).

5
Henry’s history and testimony, the IJ exercised his discretion to
cancel the removal of Henry as permitted pursuant to § 1229b.
The IJ also concluded that Henry’s conviction did not
constitute an aggravated felony. The DHS appealed the IJ’s
decision to the BIA, arguing that the IJ had incorrectly held that
Henry had not committed an aggravated felony. The BIA
reversed, holding that Henry’s conviction of criminal possession
in the second degree constituted an aggravated felony because
“a crime that involves possession of a loaded firearm with the
intent to use the firearm unlawfully against another, ‘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,’” and was thus a crime of violence.
(J.A. 010 (quoting § 16(b).) As such, Henry was ineligible for
cancellation of removal and the BIA ordered him removed.
Henry timely filed a petition for review.
II. Jurisdiction and Standard of Review
Under the REAL ID Act, we exercise jurisdiction to
review “constitutional claims or questions of law raised upon a
petition for review.” 8 U.S.C. § 1252(a)(2)(D). Whether
Henry’s conviction constitutes an aggravated felony presents a
question of law within our subject matter jurisdiction over which
we exercise plenary review. Garcia v. Att’y Gen. of the U.S.,
462 F.3d 287, 291 (3d Cir. 2006). We do not defer to the BIA’s
determination of whether a crime constitutes an aggravated
felony. Singh v. Ashcroft, 383 F.3d 144, 151 (3d Cir. 2004).

6
III. Discussion
The issue before us is whether Henry’s conviction for
criminal possession of a firearm constitutes an aggravated
felony. The term “aggravated felony” is defined by § 1101(a)
as, inter alia, “a crime of violence (as defined in section 16 of
title 18, United States Code, but not including a purely political
offense) for which the term of imprisonment [is] at least one
year.” § 1101(a)(43)(F). In turn, under § 16:
The term “crime of violence” means–
(a) an offense that has as an element the use,
attempted use, or threatened use of physical force
against the person or property of another, or
(b) any other offense that is a felony and 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.2
§ 16. Because an alien convicted of an aggravated felony is
ineligible for cancellation of removal pursuant to § 1229b, if
Henry’s crime constitutes an aggravated felony, then the BIA
correctly ordered Henry removed. If not, the petition for review
should be granted.

2
The BIA did not find and the government does not argue
that Henry’s conviction is encompassed by § 16(a); therefore,
that section is not relevant here.

7
 To determine if a person was convicted of a crime of
violence within the meaning of § 16, the court employs the
“categorical” approach. Oyebanji v. Gonzales, 418 F.3d 260,
262 (3d Cir. 2005) (citing Taylor v. United States, 495 U.S. 575,
602 (1990)). This requires us “to look to the elements and the
nature of the offense of conviction, rather than to the particular
facts relating to petitioner’s crime.” Leocal v. Ashcroft, 543
U.S. 1, 7 (2004). However, the categorical approach does not
bar us from determining which numbered subsection was
violated where, as here, the disjunctive phrasing of the statute of
conviction invites inquiry into the specifics of the conviction.
Tran v. Gonzales, 414 F.3d 464, 469 n.4 (3d Cir. 2005); Singh,
383 F.3d at 162. Accordingly, we examine the conduct covered
by § 265.03(1)(b)–possession of a loaded firearm with intent to
use the same unlawfully against another.
In Leocal, the Supreme Court addressed the mental state
necessary for a crime of violence under § 16(b) and held that §
16(b) “requir[es] a higher mens rea than [] merely accidental or
negligent conduct.” Leocal, 543 U.S. at 11. In Tran, decided
after Leocal, we reaffirmed our precedent from United States v.
Parson, 955 F.2d 858 (3d Cir. 1992), which held that neither
does a reckless state of mind suffice to satisfy the requirements
of § 16(b). Tran, 414 F.3d at 470-72. Accordingly, “§ 16(b)
crimes are those raising a substantial risk that the actor will
intentionally use force in the furtherance of the offense.” Id. at
471 (emphasis omitted). Stated another way, “a crime of
violence under § 16(b) must involve a substantial risk that the
actor will intentionally use physical force in committing his

8
crime.” Id. at 472. Thus, applying the categorical approach and
our § 16(b) jurisprudence, our inquiry is whether the possession
of a loaded firearm with intent to use the same unlawfully
against another involves a substantial risk that the actor will
intentionally use physical force in committing his crime.
This court has already addressed this same question,
albeit under different statutes. In the case Impounded, 117 F.3d
730 (3d Cir. 1997), a panel of this court considered whether a
juvenile had committed an act within a class of crimes defined
by 18 U.S.C. § 5032 so as to render him subject to mandatory
transfer from juvenile status to prosecution as an adult in federal
district court. Impounded, 117 F.3d at 731. The language of §
5032 that defines acts mandating transfer is in all material
respects identical to § 16(b): “a juvenile who is alleged to have
committed an act . . . which if committed by an adult would be
a felony offense . . . that, by its very nature, involves a
substantial risk that physical force against the person of another
may be used in committing the offense.” § 5032. Although the
juvenile was charged with other crimes that clearly met the
definition of an act mandating transfer, the panel specifically
examined the possession crime with which the juvenile was
charged. Impounded, 117 F.3d at 737 n.10. The court
employed the categorical approach, looking at the statute of
conviction, Section 2251(a)(2) of Title Fourteen of the Virgin
Islands Code (“§ 2251(a)(2)”), to determine whether it met the
definition in § 5032. Id. at 738 & n.11. The language of the
possession crime at issue in Impounded tracks the language of
the New York criminal statute under which Henry was

9
convicted, punishing a person who “with intent to use the same
unlawfully against another, has, possesses, bears, transports,
carries or has under his proximate control, a dagger, dirk,
dangerous knife, razor, stiletto, or any other dangerous or deadly
weapon.” § 2251(a)(2). Examining two statutes that for all
relevant purposes are identical to the statute of conviction and
enumerating statute applicable to Henry, we concluded in
Impounded: “Certainly if someone intends to use a dangerous
weapon then there is ‘substantial risk that physical force . . .
may be used.’ Therefore, § 2251(a)(2) satisfies . . . the § 5032
mandatory
4
transfer provisions.” Impounded, 117 F.3d at 738.3,

3
Stated another way, we held:
Because the possession crime includes as an
element of the offense the intent to use a
dangerous weapon, and the commission of the
crime will therefore present a substantial risk that
physical force will be used, we hold that the
possession crime satisfies the requirements of the
§ 5032 mandatory transfer provisions.
Impounded, 117 F.3d at 731.
4
In the margin, we also opined that the elements of §
2251(a)(2) satisfy the requirements of § 16(b). Impounded, 117
F.3d at 738 n.12. This was dictum in Impounded and it is here
we write to affirm that proposition, applying the reasoning in
Impounded to the statutes at issue.

10
 In interpreting § 2251(a)(2), we drew upon cases
involving determinations of whether a felon-in-possession crime
constituted a “crime of violence,” as defined by the Sentencing
Guidelines. Impounded, 117 F.3d at 738 n.13. We explained
that prior to the 1991 amendment to the Guidelines,5 courts
relied on the following inferential analysis: “mere possession
may imply intent to use . . . . The intent to use in turn creates the
substantial risk of the use of physical force.” Id. After
amendment, the Sentencing Commission made the first
inferential step (possession implies intent to use) impermissible.
Id. However, we reasoned in Impounded that because §
2251(a)(2), the Virgin Islands statute, required proof of intent,
intent did not have to be inferred as was no longer permissible;
accordingly, the reasoning of the second inferential step (intent
to use creates the substantial risk of the use of force) remained
unchanged and was relied on. See id.
Henry asserts that Leocal undermines the reasoning of
Impounded because Leocal prohibits reliance on the definition
of a “crime of violence” contained in the Sentencing Guidelines,
which he contends was the basis for the court’s holding in
Impounded. The Leocal Court noted specifically that the
definition of a “crime of violence” under the Sentencing
Guidelines is not the same as the definition of a “crime of

5
The application notes were amended, effective November 1,
1991, to state: “The term ‘crime of violence’ does not include
the offense of unlawful possession of a firearm by a felon.”
U.S. Sentencing Guidelines Manual § 4.B1.2 cmt. n.2 (1992).

11
violence” under § 16(b). 543 U.S. at 10 n.7; see also United
States v. Hull, 456 F.3d 133, 139 (3d Cir. 2006) (“The Leocal
Court rejected, as dissimilar and insufficient, the definition and
interpretation of U.S.S.G. § 4B1.2(a)(2)’s definition of ‘crime
of violence,’ which required only ‘conduct which presents a
serious potential risk of physical injury to another.’”). However,
before the Sentencing Guidelines were amended in 1989, the
term “crime of violence” was defined by § 16.6 Therefore, cases
interpreting § 16 in the sentencing context remain relevant. See

6
Prior to amendment, § 4B1.2 stated: “The term ‘crime of
violence’ as used in this section is defined under 18 U.S.C. §
16.” U.S. Sentencing Guidelines Manual § 4.B1.2(1) (1989).
Effective November 1, 1989, the Guidelines were amended to
define a “crime of violence” as:
any offense under federal or state law, punishable
by imprisonment for a term exceeding one year,
that–
(i) has as an element the use, attempted use, or
threatened use of physical force against the person
of another, or
(ii) is burglary of a dwelling, arson, or extortion,
involves use of explosives, or otherwise involves
conduct that presents a serious potential risk of
physical injury to another.
U.S. Sentencing Guidelines Manual § 4.B1.2 app. C, amend.
268 (2006).

12
Tran, 414 F.3d at 470 n.5 (“The fact that Parson interpreted §
16 in the Sentencing Guidelines context, while we now interpret
it in the immigration context, does not prevent our interpretation
of § 16 in that case from binding us now.”). Our analysis that
the intent to use creates a substantial risk of the use of physical
force thus remains intact and we are bound by it. See 3d Cir.
Internal Operating P. 9.1 (“[T]he holding of a panel in a
precedential opinion is binding on subsequent panels.”).
Regardless, the proposition is sound: certainly if someone
intends to use physical force there is a substantial risk that
physical force may be used.
Henry argues that the crime at issue cannot be a crime of
violence because the final element of § 16(b)–the requirement
that the substantial risk of the use of force arise in the course of
committing the offense–is not met. Henry cites Hull for
authority, contending at oral argument that Hull “repeatedly
emphasized that the focus is on whether or not the risk of
physical injury arises during the course of committing the
crime,” and that “when the individual possesses the weapon
with the intent to use, at that point, the crime is complete, any
additional [] effect of that, which we don’t look at in this
analysis, is a different crime.” In other words, Henry asserts
that once the offense is complete–at the moment Henry
possessed the weapon and had a thought of intending to use that
weapon against another–he could no longer act during the
commission of the crime and any further actions constitute
another crime entirely. We disagree with this analysis.

13
 In Hull, we found that the mere possession of a pipe
bomb does not constitute a crime of violence under § 16(b)
because “[t]here is no risk that physical force might be used
against another to commit the offense of possession.” 456 F.3d
at 139 (emphasis in original). Thus, we did not take into
account the ultimate purpose of the pipe bomb, as it was not part
of the offense. Id. Similarly, in United States v. Bowers, 432
F.3d 518 (3d Cir. 2005), we concluded, under the largely
identical provisions of the Bail Reform Act,7 that “the mere fact

7
The Bail Reform Act of 1984 requires a court to hold a
detention hearing upon motion by the government if the
defendant is charged with a crime of violence. 18 U.S.C. §
3142(f)(1)(A). The Act then lists factors a court must consider
in deciding whether to release a defendant pending trial,
including whether the offense is a crime of violence. §
3142(g)(1). For purposes of these provisions, the term “crime
of violence” means:
(A) an offense that has an element of the offense
the use, attempted use, or threatened use of
physical force against the person or property of
another;
(B) any other offense that is a felony and 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; or

14
that the particular individual who possesses a firearm is a felon
does not permit an inference that he will use the weapon
violently.” Bowers, 432 F.3d at 521-22. This is because
possession alone does not permit the inference that there is a
substantial risk of the use of force. See id. at 521 (stating that
“unwarranted ‘factual assumptions’” are required to establish
“‘a direct relationship between [possession of a firearm] and a
risk of violence’” (quoting United States v. Singleton, 182 F.3d
7, 14 (D.C. Cir. 1999))).
However, the statute in Impounded and the New York
statute under which Henry was convicted both require proof not
only of possession but also of intent to use a weapon unlawfully
against another, whereas in Hull and Bowers we considered only
the crime of possession, without the concomitant element of
intent to use the weapon unlawfully. Intent means “either that
(1) it was [the defendant’s] conscious desire or purpose to act in
a certain way or to cause a certain result, or that (2) [the
defendant] knew that [he or she] was acting in that way or
would be practically certain to cause that result.” 3d Cir. Model
Criminal Jury Instr. § 5.03 (2006). Under Impounded, proof of
the intent element creates the substantial risk that physical force
will be used during the commission of the offense. Under Hull,
proof of the intent element satisfies the requirement that § 16(b)
“crimes are those raising a substantial risk that the actor will

(C) any felony under chapter 109A, 110, or 117.
§ 3156(a)(4).

15
intentionally use force in the furtherance of the offense.” 456
F.3d at 140 (internal quotation and emphasis omitted).
Henry’s reading of Hull is also too narrow because it
would prevent burglary–the paradigmatic § 16(b) crime as
discussed by the Supreme Court in Leocal–from being
considered a crime of violence under § 16(b). See Leocal, 543
U.S. at 10 (describing burglary as “[t]he classic example”).
Generic burglary requires “an unlawful or unprivileged entry
into, or remaining in, a building or other structure, with intent to
commit a crime.” Taylor, 495 U.S. at 598. As such, the
requisite elements of a burglary are complete once the burglar
enters and possesses the necessary mental intent. However, the
substantial risk that the burglar will use force comes from the
possibility that the burglar will encounter another during the
course of the burglary; it is irrelevant that the technical elements
have already been accomplished. See Leocal, 543 U.S. at 10
(concluding that “[a] burglary would be covered under § 16(b)
. . . because burglary, by its nature, involves a substantial risk
that the burglar will use force against a victim in completing the
crime); see also James v. United States, 127 S. Ct. 1586, 1594-
95 (2007) (stating the risk of burglary “arises not from the
completion of the burglary, but from the possibility that an
innocent person might appear while the crime is in progress”);
Parson, 955 F.2d at 866 (noting that “a burglar of a dwelling
risks having to use force if the occupants are home and hear the
burglar”).
Accordingly, we conclude that possession of a weapon
with intent to use the same unlawfully against another, as

16
described in § 265.03, is a crime of violence within the meaning
of § 16(b). Thus, we will affirm the BIA and deny Henry’s
petition for review.

17