Morris v. Holder

10-4687-ag
Morris v. Holder

United States Court of Appeals
FOR THE SECOND CIRCUIT

August Term 2011

(Submitted: September 26, 2011 Decided: April 23, 2012)

No. 10-4687-ag
_____________________________________

CONNELL STANLEY MORRIS,
Petitioner,

-v.-

ERIC H. HOLDER, JR.,
Attorney General of the United States,
Respondent.
_____________________________________

Before: WALKER, MCLAUGHLIN, and LIVINGSTON, Circuit Judges.

Petition for review of a decision of the Board of Immigration Appeals
(“BIA”) affirming an order of an Immigration Judge finding petitioner Connell
Stanley Morris removable on the basis of his second-degree assault conviction
in violation of New York Penal Law § 120.05(2) and on the basis of petitioner’s
conviction of attempted criminal possession of a controlled substance in the
seventh degree in violation of New York Penal Law §§ 110 and 220.03. The BIA
found Morris ineligible for cancellation of removal because his second-degree
assault conviction constituted a “crime of violence” under 18 U.S.C. § 16(b) and
therefore an “aggravated felony” for purposes of § 101(a)(43)(F) of the
Immigration and Nationality Act (“INA”), 8 U.S.C. § 1101(a)(43)(F). We hold
that a conviction for second-degree assault under New York Penal Law
§ 120.05(2) categorically constitutes a “crime of violence” for the purposes of 18
U.S.C. § 16(b). We further conclude that the Supreme Court’s decision in
Padilla v. Kentucky, 130 S. Ct. 1473 (2010), did not overturn our precedent
holding that the Ex Post Facto Clause of the United States Constitution, U.S.
CONST. art. I, § 9, cl. 3, is not applicable in the deportation and removal context.
We dismiss the petition for review.
 ANNE E. DOEBLER, Buffalo, New York, for
Petitioner (on submission).

KILEY L. KANE, Office of Immigration Litigation,
United States Department of Justice,
Washington, District of Columbia (Tony West,
Assistant Attorney General, Civil Division, and
John S. Hogan, Senior Litigation Counsel, Office
of Immigration Litigation, on the brief) for
Respondent (on submission).

LIVINGSTON, Circuit Judge:

This appeal requires us to determine whether a conviction for second-

degree assault pursuant to New York Penal Law § 120.05(2) is a “crime of

violence” under 18 U.S.C. § 16(b) and therefore an “aggravated felony” for

purposes of § 101(a)(43)(F) of the Immigration and Nationality Act (“INA”), 8

U.S.C. § 1101(a)(43)(F). We are also asked to determine whether the Supreme

Court’s decision in Padilla v. Kentucky, 130 S. Ct. 1473 (2010), overturned the

“long and constant line of precedent establish[ing] that statutes retroactively

setting criteria for deportation do not violate the ex post facto clause” of the

United States Constitution because “[d]eportation is a civil, not a criminal,

proceeding.” Kuhali v. Reno, 266 F.3d 93, 111-12 (2d Cir. 2001).

Petitioner Connell Stanley Morris, a native and citizen of Saint Vincent

and the Grenadines admitted to the United States as a lawful permanent

2
resident, was convicted of assault in the second degree pursuant to New York

Penal Law § 120.05(2) and of attempted criminal possession of a controlled

substance in the seventh degree in violation of New York Penal Law §§ 110 and

220.03. By order of October 19, 2010, and based on Morris’s assault conviction,

the Board of Immigration Appeals (“BIA”) upheld the November 20, 2009 oral

decision of the Immigration Judge (“IJ”) ordering Morris removed from the

United States as an alien convicted of an “aggravated felony.”

Morris raises two arguments in his petition. First, he contends that the

BIA erred in holding that his New York State conviction for second-degree

assault constitutes a “crime of violence” pursuant to 18 U.S.C. § 16(b) and is

therefore an “aggravated felony” as defined in § 101(a)(43)(F) of the INA.1

Second, Morris contends that Padilla v. Kentucky, 130 S. Ct. 1473 (2010),

overturns the substantial body of precedent holding that deportation and removal

proceedings are civil in nature and thus do not implicate the Ex Post Facto

1
A “crime of violence” is defined in 18 U.S.C. § 16 as follows:

(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.

Section 101(a)(43)(F) of the INA provides, in turn, that “a crime of violence (as defined in
section 16 of title 18 . . . ) for which the term of imprisonment [is] at least one year” is an
“aggravated felony.” 8 U.S.C. § 1101(a)(43)(F).

3
Clause. As a result, he argues that the Illegal Immigration Reform and

Immigrant Responsibility Act of 1996 (“IIRIRA”), Pub. L. No. 104-208, div. C, 110

Stat. 3009-546, which expanded the INA’s definition of “aggravated felony” to

include “a crime of violence” (as defined in 8 U.S.C. § 16) that results in a prison

sentence of one year or more, see 8 U.S.C. § 1101(a)(43)(F) (as added by IIRIRA

§ 321, 110 Stat. at 3009-627), should not apply retroactively to his 1993 assault

conviction.

For the reasons stated below, we reject each of these contentions. We

conclude that second-degree assault under New York Penal Law § 120.05(2) does

constitute a “crime of violence” within the meaning of 18 U.S.C. § 16(b) and an

“aggravated felony” under 8 U.S.C. § 1101(a)(43)(F). We further conclude that

the decision in Padilla does not alter longstanding precedent holding that

deportation is a civil proceeding and that, as a result, statutes retroactively

setting criteria for deportation do not implicate the Ex Post Facto Clause.

With these questions decided, we lack jurisdiction to further review the

order of removal in this case. Accordingly, we dismiss Morris’s petition for

review.

BACKGROUND

Morris, a native and citizen of Saint Vincent and the Grenadines, was

admitted to the United States as a lawful permanent resident on August 17,

4
1980. On July 9, 1993, Morris pleaded guilty in New York State to a charge of

assault in the second degree in violation of New York Penal Law § 120.05(2); he

was sentenced to five years’ probation on August 23, 1993. Morris was found to

be in violation of his probation on August 25, 1994, and was resentenced to a

term of one year of imprisonment on September 14, 1994.

On September 20, 2001, Morris pleaded guilty for a second time in New

York State, this time to the offense of attempted criminal possession of a

controlled substance in the seventh degree in violation of New York Penal Law

§§ 110 and 220.03. Morris was sentenced to one year of probation for this offense.

On July 30, 2008, the Department of Homeland Security (“DHS”) instituted

removal proceedings against Morris on the ground that his 1993 New York State

conviction for second-degree assault rendered him an aggravated felon, and on

the additional ground that he had been convicted of a controlled substance

violation. See 8 U.S.C. § 1227(a)(2)(A)(iii), (B)(i). At a hearing before an IJ on

November 20, 2009, Morris, who was represented by counsel, admitted his

second-degree assault conviction but challenged removability on the basis that

his conviction for second-degree assault should not be considered a “crime of

violence” within the meaning of 18 U.S.C. § 16(b). Morris further contended that

he was entitled to a waiver of inadmissability under INA § 212(c), 8 U.S.C. §

1182(c), and that in addition to a § 212(c) waiver or in the alternative, he was

5
entitled to cancellation of removal pursuant to 8 U.S.C. § 1229b(a).

By oral decision of November 20, 2009, the IJ rejected these challenges as

without merit and ordered Morris removed to Saint Vincent and the Grenadines.

The IJ found that Morris’s assault conviction qualified as an “aggravated felony”

for purposes of § 101(a)(43)(F) of the INA because second-degree assault is a

“crime of violence” as defined in 18 U.S.C. § 16(b). The IJ also concluded that

Morris’s conviction for attempted possession constituted a controlled substance

violation under 8 U.S.C. § 1227(a)(2)(B)(i).

With respect to Morris’s petition for a § 212(c) waiver, the IJ determined

that Morris was not eligible for such a waiver and that, in any event, Morris

could not obtain relief through simultaneous consideration of applications for

cancellation of removal and § 212(c) relief. The IJ reasoned that regardless of the

grant of a § 212(c) waiver, Morris was rendered ineligible for cancellation of

removal due to his aggravated felony conviction.

Morris appealed to the BIA, which affirmed the IJ’s decision on October 19,

2010. In reaching the conclusion that Morris’s assault conviction constituted an

aggravated felony, the BIA relied on our decision in United States v. Walker, 442

F.3d 787 (2d Cir. 2006), which held that a conviction for second-degree assault

under New York Penal Law § 120.05(2) constituted a conviction for a violent

felony for purposes of the Armed Career Criminal Act (“ACCA”), 18 U.S.C. §

6
924(e). The BIA also agreed with the IJ that Morris could not obtain relief from

removal through simultaneous petitions for cancellation of removal and § 212(c)

relief, given that his aggravated felony conviction rendered him ineligible for

cancellation.

On November 17, 2010, Morris petitioned this Court for review of the BIA’s

decision. On appeal, Morris contends that the BIA and the IJ erred in classifying

his second-degree assault conviction as a “crime of violence.” He further contends

that, even assuming arguendo that his conviction qualifies as a “crime of

violence,” IIRIRA’s expanded definition of “aggravated felony” should not apply

retroactively to his assault conviction. Although Morris acknowledges the

longstanding precedent holding that the Ex Post Facto Clause is not implicated

in deportation proceedings, he contends that the Supreme Court’s decision in

Padilla v. Kentucky, 130 S. Ct. 1473 (2010), overturned this precedent, and that

therefore the Ex Post Facto Clause bars the retroactive application of IIRIRA to

his assault conviction.2

DISCUSSION

2
Morris does not pursue the issue of his eligibility for a § 212(c) waiver in his petition to this
Court. Nor does he challenge the determination of the IJ and the BIA that, assuming arguendo that
his assault conviction qualifies as an aggravated felony, he is ineligible for cancellation of removal.

7
 “Where, as here, the BIA adopts the decision of the IJ and merely

supplements the IJ’s . . . decision, we review the decision of the IJ as

supplemented by the BIA.” Guamanrrigra v. Holder, 670 F.3d 404, 409 (2d Cir.

2012) (internal quotation marks omitted).

I. Jurisdiction

We lack jurisdiction to review any final order of removal against an alien

who is removable because he has committed an aggravated felony as defined in

8 U.S.C. § 1227(a)(2)(A)(iii). See 8 U.S.C. § 1252(a)(2)(C). We retain jurisdiction,

however, to determine constitutional claims and questions of law that arise from

BIA proceedings. See 8 U.S.C. § 1252(a)(2)(D). Whether an offense is an

aggravated felony for purposes of the immigration laws is a question of law. See

Blake v. Gonzales, 481 F.3d 152, 155-56 (2d Cir. 2007). We review this issue de

novo. Pierre v. Gonzales, 502 F.3d 109, 113 (2d Cir. 2007). We likewise retain

jurisdiction to consider Morris’s constitutional claim.

At the outset, we reject the Respondent’s contention that we must dismiss

Morris’s petition for lack of jurisdiction on the theory that regardless of whether

Morris’s assault conviction constitutes an “aggravated felony” (or, presumably,

whether the Constitution permits the retroactive application of the current

definition of “aggravated felony” to him) there is no dispute that Morris is

removable on the basis of his controlled substance conviction. Even assuming

8
that Morris is removable on this basis alone, this conviction did not render him

ineligible for cancellation of removal. See 8 U.S.C. §§ 1101(a)(43), 1229b(a)(3).

The IJ concluded, and the BIA agreed, that Morris was ineligible for cancellation

because it found that Morris’s assault conviction constitutes an “aggravated

felony.” Although we lack jurisdiction to review a factual determination by the

BIA that an alien is ineligible for cancellation of removal, see Rosario v. Holder,

627 F.3d 58, 64 (2d Cir. 2010), we retain jurisdiction to consider an alien’s claim

that he is eligible for such relief where that claim presents an issue of law, see

Wellington v. Holder, 623 F.3d 115, 118 (2d Cir. 2010) (per curiam). Accordingly,

we retain jurisdiction to consider the legal and constitutional claims asserted

here.

II. Aggravated Felony

The INA provides that “[a]ny alien who is convicted of an aggravated felony

at any time after admission is deportable.” 8 U.S.C. § 1227(a)(2)(A)(iii). Included

within the definition of “aggravated felony” is “a crime of violence (as defined in

section 16 of title 18 . . . ) for which the term of imprisonment [is] at least one

year.” 8 U.S.C. § 1101(a)(43)(F). Section 16 of Title 18 sets forth two definitions

of “crime of violence”:

(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

9
 (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.

18 U.S.C. § 16. The BIA determined that Morris’s second-degree assault

conviction qualified as a crime of violence under § 16(b). We agree.

We approach the question of whether an offense falls within § 16(b)

categorically and “look to the generic elements of the statutory offense” rather

than to “the factual circumstances surrounding any particular violation.” Jobson

v. Ashcroft, 326 F.3d 367, 371-72 (2d Cir. 2003); see also Dalton v. Ashcroft, 257

F.3d 200, 204 (2d Cir. 2001) (“[O]nly the minimum criminal conduct necessary to

sustain a conviction under a given statute is relevant. . . .” (internal quotation

marks omitted)).3 “We have broadly defined ‘physical force’ for purposes of § 16

as ‘power, violence, or pressure directed against a person or thing,’” and have

rejected the argument that the “force referenced in § 16(b) must be ‘violent force

applied directly to the person of the victim.’” Vargas-Sarmiento v. U.S. Dep’t of

Justice, 448 F.3d 159, 169 (2d Cir. 2006) (quoting Dickson v. Ashcroft, 346 F.3d

44, 50 (2d Cir. 2003)). In addition, “[f]or a particular felony, by its nature, to

present a ‘substantial risk’ of the use of such physical force, a court need not

conclude that commission of the crime requires the invariable application of such

The parties agree that Morris was convicted of second-degree assault under
3

New York Penal Law § 120.05(2).

10
force.” Id. The “substantial risk” in § 16(b) “refers to intentional, rather than

merely negligent or accidental, use of force.” Id. at 169-70. But § 16 “defines as

a crime of violence those felony offenses ‘that naturally involve a person acting

in disregard of the risk that physical force might be used against another in

committing an offense.’” Id. at 169 (quoting Leocal v. Ashcroft, 543 U.S. 1, 10

(2004)).

Morris was convicted under New York Penal Law § 120.05(2), which

provides that a person is guilty of assault in the second degree when, “[w]ith

intent to cause physical injury to another person, he causes such injury to such

person or to a third person by means of a deadly weapon or a dangerous

instrument.” Id. Under the categorical approach, the generic elements of this

offense are: (1) the specific intent to cause physical injury; (2) actually causing

physical injury; and (3) doing so through the use of a deadly weapon or dangerous

instrument.

We have previously observed that where an accused has an intent “to inflict

serious physical injury--action likely to meet vigorous resistance from a victim--

we can confidently conclude that inherent in the nature of the crime is a

substantial risk that the perpetrator may intentionally use physical force to

achieve his criminal objective.” Vargas-Sarmiento, 448 F.3d at 173 (emphases

omitted); see also id. at 174 (“Where a person’s specific intent is . . . to cause [the

11
victim] serious physical injury, there is necessarily a significant risk inherent in

the nature of the crime that, if the perpetrator cannot initially achieve his

objective without physical force, he may ultimately resort to force to do so.”). The

“nature of the objective,” we have said, “and the possibility of discovery and

resistance are enough to establish the requisite inherent risk that the perpetrator

might intentionally use physical force.” Id. at 173; see also Jobson, 326 F.3d at

373 (noting that burglary is a crime of violence “because a burglar of a dwelling

risks having to use force if the occupants are home and hear the burglar” (internal

quotation marks omitted)).

Given that New York Penal Law § 120.05(2) has as elements both the

intent to cause physical injury and injury itself (and by means of a deadly weapon

or dangerous instrument), it is not surprising that the reported cases relating to

convictions pursuant to this provision involve the intentional use of physical

force. See, e.g., People v. Blanche, 90 N.Y.2d 821 (1997) (accused shot victim);

People v. McKoy, 685 N.Y.S.2d 525 (4th Dep’t 1999) (accused struck victim with

a chair); People v. Campos, 614 N.Y.S.2d 604 (3d Dep’t 1994) (accused injured

victim with a knife); People v. Miller, 592 N.Y.S.2d 805 (3d Dep’t 1993) (accused

struck victim with a beer bottle). As we said in concluding that § 120.05(2)

qualifies as a “violent felony” for the purpose of ACCA, § 120.05(2)’s requirement

that the accused intentionally cause physical injury by means of a deadly weapon

12
or dangerous instrument necessarily involves the use of physical force “on any

reasonable interpretation of that term.” United States v. Walker, 442 F.3d 787,

788 (2d Cir. 2006) (per curiam); see also United States v. Daye, 571 F.3d 225, 234

n.9 (2d Cir. 2009) (finding this Court’s analysis of § 16(b) to be “helpful” in

determining whether an offense is a “violent felony” under ACCA).

Morris offers two arguments as to why his assault conviction is not a “crime

of violence.” First, Morris relies on our decision in Chrzanoski v. Ashcroft, 327

F.3d 188 (2d Cir. 2003), to argue that a crime requiring the intent to cause injury

need not require the use of physical force. Chrzanoski is inapposite, however, as

it considered whether an offense was a “crime of violence” under § 16(a)--not

§ 16(b). See id. at 191. We have noted that § 16(b) “sweeps more broadly than

§ 16(a)” and that, unlike § 16(a), it does not require that an offense have as an

element the use of physical force. Vargas-Sarmiento, 448 F.3d at 169 (internal

quotation marks omitted). Rather, under § 16(b), we “focus on the nature of the

felony at issue to determine if it inherently presents ‘a substantial risk’ that the

perpetrator ‘may’ use physical force in the commission of the crime.” Id.

Chrzanoski is therefore inapplicable here.

Morris next argues that second-degree assault under New York Penal Law

§120.05(2) is not a “crime of violence” under §16(b) because an individual can

hypothetically commit that offense without any risk of the intentional use of

13
“physical force.” In support of his argument, Morris posits that an individual who

poisons his victim would be committing second-degree assault under New York

Penal Law § 120.05(2) without employing “physical force.” This argument is also

unavailing.

We have held that “[w]hether a crime, by its nature, presents a ‘substantial

risk’ that the perpetrator ‘may’ intentionally use physical force is not answered

in the negative simply because ‘cases can be imagined where a defendant’s

conduct does not create a genuine probability that force will be used.’” Vargas-

Sarmiento, 448 F.3d at 174 (quoting Chery v. Ashcroft, 347 F.3d 404, 408 (2d Cir.

2003)); see also Dickson, 346 F.3d at 51 (noting that a defendant’s “[p]ositing a

hypothetical manner in which the [offense] could be accomplished” without the

use of physical force “does not necessarily exclude” the offense from the ambit of

§ 16(b)). Moreover, we have already rejected the argument that the act of

poisoning does not involve the use of physical force in the commission of the

offense. See Vargas-Sarmiento, 448 F.3d at 174. To the contrary, “the physical

force referenced in § 16(b) includes any ‘power, violence, or pressure directed

against a person or thing.’” Id. (quoting Dickson, 346 F.3d at 50) (emphasis

added). Consequently, where an individual “poisons food that [he] intends

[someone] to eat, . . . . [he] intentionally avails h[im]self of the physical force

exerted by poison on a human body.” Id. at 174-75.

14
 We have considered Morris’s remaining arguments as to why his New York

State conviction for second-degree assault does not qualify as a crime of violence

pursuant to 18 U.S.C. § 16(b) and have determined that they are without merit.

Accordingly, we conclude that the BIA did not err in determining that a

conviction for second-degree assault pursuant to New York Penal Law § 120.05(2)

is a “crime of violence” under 18 U.S.C. § 16(b) and therefore an “aggravated

felony” for purposes of § 101(a)(43)(F) of the INA.

III. Ex Post Facto Clause

Morris next argues that the retroactive application of IIRIRA’s

amendments to the INA’s definition of “aggravated felony” in his deportation

proceedings violated the Ex Post Facto Clause, U.S. CONST. art. I, § 9, cl. 3. He

acknowledges the long and unwavering line of authority to the contrary --

authority “establishing ‘that statutes retroactively setting criteria for deportation

do not violate the ex post facto’ clause.” Domond v. INS, 244 F.3d 81, 87 (2d Cir.

2001) (quoting United States v. Koziel, 954 F.2d 831, 834 (2d Cir. 1992))

(emphasis added). Morris contends that the Supreme Court’s decision in Padilla

v. Kentucky, 130 S. Ct. 1473 (2010), has overturned this authority. For the

following reasons, we disagree.

In Padilla, the Supreme Court held that a criminal defendant’s counsel has

an obligation under the Sixth Amendment to inform that defendant whether his

15
plea carries a risk of deportation. See id. at 1486. In so holding, the Supreme

Court stated that, “as a matter of federal law, deportation is an integral part --

indeed, sometimes the most important part -- of the penalty that may be imposed

on noncitizen defendants who plead guilty to specified crimes.” Id. at 1480

(emphasis added and footnote omitted). The Supreme Court further noted that

“deportation is . . . intimately related to the criminal process,” that “[o]ur law has

enmeshed criminal convictions and the penalty of deportation for nearly a

century,” and that it is “most difficult to divorce the penalty from the conviction

in the deportation context.” Id. at 1481 (internal quotation marks omitted).

We have yet to consider whether Padilla draws into question the many

cases that have rejected the argument that statutes retroactively setting criteria

for deportation raise ex post facto concerns. In Alvarado-Fonseca v. Holder, 631

F.3d 385 (7th Cir. 2011), however, the Seventh Circuit dismissed this argument,

relying on the Supreme Court’s statement in Padilla itself that “deportation ‘is

not, in a strict sense, a criminal sanction.’” Id. at 392 (quoting Padilla, 130 S. Ct.

at 1481). The Seventh Circuit concluded that, “[i]n light of that statement,” the

court could not agree “that Padilla provides sufficient guidance to deviate from

the long line [of] cases establishing that statutes retroactively setting criteria for

deportation do not violate the ex post facto clause.” Id.

We join the Seventh Circuit. Both this Circuit and, more importantly, the

16
Supreme Court, have long held that deportation and removal are civil

proceedings. See Galvan v. Press, 347 U.S. 522, 531 (1954) (“And whatever might

have been said at an earlier date for applying the ex post facto [c]lause, it has

been the unbroken rule of this Court that it has no application to deportation.”);

United States v. Koziel, 954 F.2d 831, 834-35 (2d Cir. 1992) (collecting cases and

observing that “[a] long and unwavering line of authority has established that

statutes retroactively setting criteria for deportation do not violate the ex post

facto provision”). Padilla itself expressly affirms that “removal proceedings are

civil in nature,” and although “deportation is a particularly severe ‘penalty,’ . . .

it is not, in a strict sense, a criminal sanction.” Padilla, 130 S. Ct. at 1481. Given

this language, we do not construe Padilla as overturning this Circuit’s prior

precedent that “statutes retroactively setting criteria for deportation do not

violate the ex post facto clause.” Kuhali, 266 F.3d at 111-12.

17
 CONCLUSION

Morris’s conviction for second-degree assault under New York Penal Law

§ 120.05(2) qualifies as a “crime of violence” for purposes of 18 U.S.C. § 16(b), and

therefore is an “aggravated felony” under § 101(a)(43)(F) of the INA, 8 U.S.C.

§ 1101(a)(43)(F). Further, the Supreme Court’s decision in Padilla did not

overturn our precedent holding that deportation and removal proceedings are

civil in nature and therefore that “statutes retroactively setting criteria for

deportation do not violate the ex post facto clause.” Kuhali, 266 F.3d at 111-12.

We have considered all of Morris’s remaining arguments and have rejected them

as without merit. For the foregoing reasons, we DISMISS the petition for review

of the BIA’s removal order.

18