723 F.3d 1 (1st Cir. 2013), 12-2401, Lecky v. Holder

Docket Nº:12-2401.
Citation:723 F.3d 1
Opinion Judge:HOWARD, Circuit Judge.
Party Name:Courtney Wayne LECKY, Petitioner, v. Eric H. HOLDER, Jr., Attorney General, Respondent.
Attorney:Glen L. Formica, with whom Formica Williams, P.C., was on brief, for petitioner. Matthew B. George, Trial Attorney, Office of Immigration Litigation, with whom Stuart F. Delery, Principal Deputy, Assistant Attorney General and Lyle D. Jentzer, Senior Litigation Counsel, Office of Immigration Liti...
Judge Panel:Before HOWARD, SELYA and THOMPSON, Circuit Judges.
Case Date:July 09, 2013
Court:United States Courts of Appeals, Court of Appeals for the First Circuit
 
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723 F.3d 1 (1st Cir. 2013)

Courtney Wayne LECKY, Petitioner,

v.

Eric H. HOLDER, Jr., Attorney General, Respondent.

No. 12-2401.

United States Court of Appeals, First Circuit.

July 9, 2013

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Glen L. Formica, with whom Formica Williams, P.C., was on brief, for petitioner.

Matthew B. George, Trial Attorney, Office of Immigration Litigation, with whom Stuart F. Delery, Principal Deputy, Assistant Attorney General and Lyle D. Jentzer, Senior Litigation Counsel, Office of Immigration Litigation, were on brief, for respondent.

Before HOWARD, SELYA and THOMPSON, Circuit Judges.

HOWARD, Circuit Judge.

Courtney Lecky, a citizen and native of Jamaica, petitions this court for review of his removal order. The Board of Immigration Appeals (" BIA" ) affirmed Lecky's removability for having committed an aggravated felony offense. We deny the petition.

I.

Lecky entered the United States in 1996 as a lawful permanent resident. In June 2006, the state of Connecticut charged Lecky with committing robbery and criminal assault for taking property from an individual outside of a Dunkin' Donuts in Stamford, Connecticut. The state later changed the charged offense to second-degree larceny, see Conn. Gen.Stat. § 53a-123(a)(3), to which Lecky pleaded

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guilty under the Alford doctrine in November 2006. 1 Although Lecky was seventeen at the time, he was convicted as an adult and sentenced to two years and a day of incarceration and five years of special parole.

In February 2012, the Department of Homeland Security (" DHS" ) initiated removal proceedings against Lecky, alleging that Lecky was removable because he had been convicted of an aggravated felony, specifically a theft offense. In May 2012, Lecky appeared before an immigration judge (" IJ" ) and denied the charge of removability. The IJ sustained the charge.

Lecky filed an application for cancellation of removal under 8 U.S.C. § 1229b, arguing that his conviction was not an aggravated felony that rendered him ineligible for cancellation of removal. Meanwhile, DHS added a second charge of removability against Lecky: conviction of a " crime of violence" aggravated felony based on the same Connecticut second-degree larceny conviction. At a July 2012 hearing, the IJ sustained the second charge, pretermitted Lecky's application for cancellation, and ordered Lecky removed to Jamaica.

Lecky appealed this decision to the BIA, again claiming that his conviction for second-degree larceny under Connecticut state law was not an aggravated felony as defined by federal statutes. See 8 U.S.C. § 1101(a)(43)(G) (defining " theft offense" ); 18 U.S.C. § 16 (defining " crime of violence" ). He also argued that he should not have been eligible for removal because he was under eighteen at the time of conviction, and furthermore that an Alford plea cannot subject an alien to removal.

The BIA rejected each of Lecky's arguments. First, relying on Second Circuit precedent, it concluded that Connecticut larceny in the second degree is a theft offense aggravated felony. See Abimbola v. Ashcroft, 378 F.3d 173 (2d Cir.2004) (holding that third-degree larceny under Connecticut law qualifies as a theft offense aggravated felony); Almeida v. Holder, 588 F.3d 778 (2d Cir.2009) (reaching the same conclusion for second-degree larceny under Connecticut law).

As to Lecky's conviction for a crime of violence, the BIA looked to see whether the offense, " 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(b). The BIA noted that Lecky was convicted under paragraph 53a-123(a)(3) of the state statute, which specifically applies when property " is taken from the person of another." It then cited Connecticut case law stating that " a risk of injury invariably accompanies" this form of larceny, and that it poses " a serious potential source of harm." State v. Wright, 246...

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