Blake v. Gonzales
| Decision Date | 28 March 2007 |
| Docket Number | Docket No. 05-2586-AG. |
| Citation | 481 F.3d 152 |
| Parties | Durant BLAKE, a/k/a Terrel Carner, a/k/a Durant Stanley, Petitioner, v. Alberto GONZALES, Attorney General of the United States, Respondent. |
| Court | U.S. Court of Appeals — Second Circuit |
Susan V.H. Degrave, Law Office of Susan V.H. DeGrave, Springfield, MA, for petitioner.
Victoria S. Shin, Assistant United States Attorney (Kevin J. O'Connor, United States Attorney for the District of Connecticut, William J. Nardini, Assistant United States Attorney, on the brief), New Haven, CT, for respondent.
Before KEARSE and SOTOMAYOR, Circuit Judges, and CEDARBAUM, District Judge.*
Petitioner Durant Blake seeks review of the April 28, 2005 decision of the Board of Immigration Appeals ("BIA") affirming the October 1, 2004 decision of Immigration Judge ("IJ") Matthew J. D'Angelo that ordered Blake's removal from the United States. In re Durant Blake, No. A 91 674 941 (B.I.A. Apr. 28, 2005), aff'g No. A 91 674 941 (Immig. Ct. Hartford Oct. 1, 2004). The IJ ordered Blake's removal (1) as an alien convicted of an "aggravated felony," 8 U.S.C. § 1227(a)(2)(A)(iii), and, (2) because Blake remained in the country without authorization from the Immigration and Naturalization Service ("INS")1 after his temporary resident status was terminated in 1991. Blake principally claims that the BIA erred in holding that his 1990 conviction for assault and battery on a police officer under Massachusetts law, see Mass. Gen. Laws ch. 265, § 13D, constitutes a "crime of violence" under 18 U.S.C. § 16 and, therefore, an "aggravated felony" as defined in 8 U.S.C. § 1101(a)(43)(F). We disagree, and hold that the BIA properly affirmed Blake's removal as an aggravated felon. Accordingly, we dismiss his petition for review.
Blake, a citizen of Jamaica, entered the United States in 1985 and was granted temporary resident status in 1988 under the Special Agricultural Workers program. See 8 U.S.C. § 1160. On November 20, 1990, the United States Department of Justice notified Blake that it intended to terminate his temporary resident status based on his September 20, 1990 convictions in Massachusetts state court for one count of cocaine possession and two counts of assault and battery on a police officer. On February 12, 1991, the Department of Justice informed Blake that he had not responded to the Notice of Intent to Terminate and therefore he had "not overcome the grounds for termination of [his] temporary resident status." It therefore terminated his temporary resident status.
On October 15, 2002, Blake pleaded guilty in the United States District Court for the District of Massachusetts to making false statements in an application for a passport and to the deceitful use of a social security number in violation, respectively, of 18 U.S.C. § 1542 and 42 U.S.C. § 408(a)(7)(B). Two weeks later, on October 31, 2002, the INS commenced removal proceedings against him by filing a Notice to Appear in the Hartford immigration court. Blake appeared before IJ D'Angelo on September 15, 2004 for a hearing at which the government amended the Notice to Appear by submitting an I-261, resulting in, inter alia, the following charges relevant to this appeal:
3. On September 12, 1990, you were admitted as a temporary resident based upon an application for adjustment of status under [the Special Agricultural Workers program,] approved on September 12, 1990, and you were authorized to remain in the United States for the duration of temporary residence.
4. On February 12, 1991, your lawful temporary (SAW) status was terminated, based upon your controlled substance conviction on September 20, 1990, and you have remained in the United States since that time without the authorization of the [INS].
6. On September 20, 1990, you were convicted of assault and battery upon a police officer in violation of Massachusetts General Laws chapter 265 sec. 13D, for which a sentence of two years suspended was imposed.
After several continuances, the IJ held a removal hearing on October 1, 2004. Blake admitted that he was a citizen of Jamaica, and not a citizen of the United States, but denied all other charges and allegations. Based on documentary evidence in the record, which included the INS's notice of intent to terminate Blake's temporary resident status as well as records of Blake's state and federal court convictions, the IJ determined that the government had sustained all charges and allegations against Blake by "clear, convincing and unequivocal evidence." The IJ held Blake removable on two independent grounds: (1) on the basis of his conviction for assault and battery upon a police officer, which the IJ determined was a crime of violence and, therefore, an aggravated felony; and (2) because Blake remained in the country without authorization from the INS after his temporary resident status was terminated in 1991. With respect to the first finding, the IJ determined that "assault and battery upon a police officer in Massachusetts under Chapter 265, Section 13D does, in fact, have as an element the use, attempted use, or threatened use of physical force against the person or property of another," and thus came within the ambit of a crime of violence as defined by 18 U.S.C. § 16(a). In the alternative, the IJ held that the offense "is a felony 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," and thus came within the ambit of 18 U.S.C. § 16(b). Accordingly, the IJ held, Blake was an aggravated felon and was removable under section 237(a)(2)(A)(iii) of the Immigration and Nationality Act ("INA"), 8 U.S.C. § 1227(a)(2)(A)(iii). In addition, based on uncontested documentary evidence, the IJ held Blake removable because he remained in the United States after his temporary resident status had been terminated. See INA § 237(a)(1)(B), 8 U.S.C. § 1227(a)(1)(B).
The IJ also denied Blake's request for a continuance in order to permit adjudication of an I-130 petition for an alien relative filed on his behalf by his son. IJ D'Angelo deemed Blake ineligible for adjustment of status, cancellation of removal or a waiver of conviction under INA § 212(h), 8 U.S.C. § 1182(h), because he was an aggravated felon and had been convicted of a drug-related crime involving cocaine, and further concluded that Blake was precluded from seeking a waiver of his convictions under INA § 212(c), 8 U.S.C. § 1182(c), and INS v. St. Cyr, 533 U.S. 289, 121 S.Ct. 2271, 150 L.Ed.2d 347 (2001), because he was not a lawful permanent resident.
Blake timely appealed to the BIA, which affirmed the IJ's decision on April 28, 2005. The BIA agreed with the IJ and held that, "whether analyzed under subsection (a) or (b) of . . . 18 U.S.C. § 16, the respondent's [assault and battery] conviction constitutes a crime of violence such that he is removable under section 237(a)(2)(A)(iii) of the Act and, accordingly, is not eligible for cancellation of removal." The BIA noted that the First Circuit adjudged assault and battery upon a police officer under Massachusetts law to be a crime of violence in the context of a sentencing enhancement case, United States v. Santos, 363 F.3d 19, 23 (1st Cir.2004), and deemed this a persuasive interpretation of the Massachusetts law. Noting, however, that Blake's case fell within the jurisdiction of the Second Circuit, the BIA found that case law from this Court did not require a different result: "While the Second Circuit has found that assault in the third degree does not necessarily contain the element of use of force and, therefore, does not qualify as a crime of violence under 18 U.S.C. § 16(a), it is clear that battery, at least the common law definition, does require some physical contact and force and, furthermore, that since the respondent's conviction qualifies as a felony, it only need involve the substantial risk that force will be used under 18 U.S.C. § 16(b)." The BIA also affirmed the IJ's denial of Blake's motion for a continuance, holding that the IJ had not abused his discretion because Blake was not eligible for the relief requested.
Blake timely filed a petition for review in this Court.
Federal courts generally lack jurisdiction "to review any final order of removal against an alien who is removable by reason of having committed a criminal offense," INA § 242(a)(2)(C), 8 U.S.C. § 1252(a)(2)(C), including, inter alia, offenses constituting aggravated felonies, see INA § 237(a)(2)(A)(iii), 8 U.S.C. § 1227(a)(2)(A)(iii), the provision addressing aggravated felonies. However, under the INA as amended by the REAL ID Act of 2005, we are permitted to review "questions of law raised upon a petition for review filed with an appropriate court of appeals." Pub.L. No. 109-13, § 106(a)(1)(A)(iii), 119 Stat. 231, 310 (2005) (codified at 8 U.S.C. § 1252(a)(2)(D)). Because the question of whether Blake's offense is a "crime of violence," and therefore constitutes an aggravated felony, is such a question of law, we have jurisdiction to review it. See Dos Santos v. Gonzales, 440 F.3d 81, 83 (2d Cir.2006). If we determine that Blake's conviction involves a crime of violence, and therefore is an aggravated felony, we must dismiss his petition for review for lack of jurisdiction. See Vargas-Sarmiento v. U.S. Dep't of Justice, 448 F.3d 159, 175-76 (2d Cir.2006).
"When this Court is called upon to construe a provision of the INA, we must give substantial deference to the BIA's interpretation of the statutes it is charged with administering." Abimbola v. Ashcroft, 378 F.3d 173, 175 (2d Cir.2004) (internal quotation marks omitted). However, "[i]n contrast to situations where a federal agency is interpreting a statute it is charged with administering, courts owe no deference to an agency's...
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