Canada v. Gonzales

• Citation: 448 F.3d 560
• Decision Date: 18 May 2006
• Docket Number: Docket No. 03-40051-AG.
• Parties: Adeodatus CANADA, Petitioner, v. Alberto R. GONZALES,<SMALL><SUP>*</SUP></SMALL> Attorney General of the United States, Michael Chertoff, Department of Homeland Security and Bureau of Immigration and Customs Enforcement, Respondents.
• Court: U.S. Court of Appeals — Second Circuit

448 F.3d 560

Adeodatus CANADA, Petitioner, v. Alberto R. GONZALES,^* Attorney General of the United States, Michael Chertoff, Department of Homeland Security and Bureau of Immigration and Customs Enforcement, Respondents.

Docket No. 03-40051-AG.

United States Court of Appeals, Second Circuit.

Argued: September 13, 2005.

Decided: May 18, 2006.

COPYRIGHT MATERIAL OMITTED

Roberto Tschudin Lucheme, Glastonbury, Connecticut, for Petitioner.

Lara K. Eshkenazi, Assistant United States Attorney (Sara L. Shudofsky, Assistant United States Attorney, of counsel) for Michael J. Garcia, United States Attorney for the Southern District of New York, New York, New York, for Respondents.

Before: MINER, RAGGI, Circuit Judges, and KARAS, District Judge.^**

KARAS, District Judge.

Petitioner Adeodatus Canada ("Petitioner") petitions for review of the May 29, 2003 decision of the Board of Immigration Appeals ("BIA") affirming the January 29, 2003 decision of Immigration Judge ("IJ") Michael W. Straus ordering Petitioner's removal from the United States. The IJ ordered Petitioner's removal because of his August 1, 2001 conviction for assault of a peace officer, in violation of Connecticut General Statutes ("CGS") § 53a-167c(a)(1), based on a plea of nolo contendere. The IJ viewed this conviction as involving a "crime of violence," thus making Petitioner eligible for removal as an aggravated felon. In affirming, the BIA concurred with the IJ's ruling. Because we agree that Petitioner's conviction involves a "crime of violence," we conclude that the BIA properly upheld Petitioner's removal as an aggravated felon, and we therefore dismiss the Petition.

BACKGROUND

Petitioner is a citizen of the Philippines and a lawful permanent resident of the United States who entered this country on January 21, 1990. On July 11, 2001, Petitioner entered a plea of nolo contendere to assault of a peace officer, in violation of CGS § 53a-167c(a)(1), and to illegal operation of a motor vehicle under the influence of alcohol, in violation of CGS § 14-227a. During the allocution, the prosecutor outlined the conduct that led to the charges against Petitioner. According to the prosecutor, a police officer pulled over Petitioner after observing him driving his car erratically. When the officer instructed Canada to place his hands where he could see them, Canada refused and instead "began piping in his opinions using various expletives." Hearing Tr., July 11, 2001, at 5. Then,

[t]he officer turned his flashlight — switched hands with his flashlight and began reaching over to the steering wheel of the vehicle to attempt to take the keys away from [Petitioner] to keep him from starting the vehicle . . . .

As the officer reached over the steering wheel to grab the keys, [Petitioner] began struggling with the officer[ ] and succeeded in starting the vehicle, began revving the engine. He then quickly shifted the vehicle into reverse and proceeded to back up at a high rate of speed spinning his tires. The officer's left arm was now stuck between the steering wheel and the dashboard and the front door post, and the officer was now dragged alongside [Petitioner's] vehicle backwards.

Id. Eventually, after being dragged alongside Petitioner's car, the officer was able to get Petitioner to put the car into park and prevent Petitioner from further driving the car. Back-up officers arrived only to face additional resistance from Petitioner.

After this allocution, and after Petitioner was advised of his trial rights, the court informed Petitioner that he would be facing a sentence of "6 years suspended after 2 years in jail" with "respect to the assault on a police officer charge." Id. at 12. Petitioner then entered his plea. Thereafter, on August 1, 2001, Petitioner was convicted and sentenced to a total of four years' imprisonment (suspended after eighteen months' imprisonment) and five years' probation.

On December 22, 2002, Petitioner was served with a Notice to Appear, alleging that he was removable under 8 U.S.C. § 1227(a)(2)(A)(iii) as an alien who had been convicted of an aggravated felony, to wit, a crime of violence for which the term of imprisonment was at least one year, pursuant to 8 U.S.C. § 1101(a)(43)(F). On January 3, 2003, Petitioner first appeared before an IJ, who adjourned the hearing to permit Petitioner to obtain counsel. The next hearing was held on January 15, 2003, during which an attorney appeared on behalf of Petitioner and during which Petitioner's conviction was made part of the record.

After receiving submissions from both sides, the IJ ruled that Petitioner's assault of a peace officer, in violation of CGS § 53a-167c(a)(1), "would clearly give rise to a substantial risk that the public safety officer would be subject to physical force" and that any such force would be intentional. IJ Oral Decision, Jan. 29, 2003, at 6. Consequently, the IJ found that Petitioner's offense of conviction was a "crime of violence," thus making Petitioner an aggravated felon eligible for removal.

Petitioner appealed to the BIA. On May 29, 2003, the BIA dismissed the appeal and ordered his removal. Agreeing with the IJ, the BIA noted that "an individual who intentionally injures a peace officer acting in the line of duty necessarily runs the risk of having to intentionally employ physical force, either to injure the officer . . . or to protect himself from harm." BIA Decision, May 29, 2003, at 4. One BIA member dissented, noting that he was "not persuaded that all possible convictions under section 53a-167c(a)(1)" involved substantial risk of the use of force. Id. at 5. This appeal followed.

DISCUSSION

A. Jurisdiction and Standard of Review

Under section 242(a)(2)(C) of the Immigration and Nationality Act of 1952 ("INA"), 8 U.S.C. § 1252(a)(2)(C), as amended by the Real ID Act of 2005, "no court shall have jurisdiction to review any final order of removal against an alien who is removable by reason of having committed a criminal offense" covered by INA § 237(a)(2)(A)(iii), 8 U.S.C. § 1227(a)(2)(A)(iii).¹ However, the INA, as amended by the Real ID Act, permits us to review "questions of law raised upon a petition for review filed with an appropriate court of appeals." 8 U.S.C. § 1252(a)(2)(D). Because the question of whether Petitioner'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. In answering this question, we review de novo the BIA's decision. See Dos Santos v Gonzales, 440 F.3d 81, 83 (2d Cir.2006); Jobson v. Ashcroft, 326 F.3d 367, 371 (2d Cir.2003); Mugalli v. Ashcroft, 258 F.3d 52, 56 (2d Cir.2001). If we determine that Petitioner's conviction involves a crime of violence (and therefore is an aggravated felony), then we must dismiss his petition for lack of jurisdiction. See Vargas-Sarmiento v. United States Dep't of Justice, 448 F.3d 159, 175, 2006 WL 1223105, at *14 (2d Cir. May 8, 2006); Jobson, 326 F.3d at 371.

B. Statutory Background

An alien convicted of an "aggravated felony" after admission to the United States may be deported. See 8 U.S.C. § 1227(a)(2)(A)(iii). There are nearly two dozen aggravated felonies identified by Congress in the INA. See 8 U.S.C. § 1101(a)(43). One type of aggravated felony is a "crime of violence" for which the term of imprisonment is at least one year. See id. § 1101(a)(43)(F). The phrase "crime of violence" is in turn defined in Title 18 as either:

(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.

18 U.S.C. § 16. The parties agree that Petitioner's removal is based on section 16(b) and not on section 16(a), as the crime for which Petitioner was convicted does not have the use of force as one of its elements. Thus, our discussion focuses on the requirements of section 16(b).

"Section 16(b) sweeps more broadly than § 16(a)," Leocal v. Ashcroft, 543 U.S. 1, 10, 125 S.Ct. 377, 160 L.Ed.2d 271 (2004), but involves only two elements: (1) a criminal felony; (2) that, "`by its nature,' involves a substantial risk that physical force" may be used. Sutherland v. Reno, 228 F.3d 171, 175 (2d Cir.2000) (quoting 18 U.S.C. § 16(b)). Here, Petitioner does not dispute that he was convicted of a felony. Rather, he claims that the felony of which he was convicted under CGS § 53a-167c(a)(1) did not, by its nature, involve a substantial risk that physical force may be used.

Section 53a-167c(a)(1) provides in pertinent part: "A person is guilty of assault of [a] public safety [officer] . . . when, with intent to prevent a reasonably identifiable . . . officer . . . from performing his or her duties, and while such . . . officer . . . is acting in the performance of his or her duties, (1) such person causes physical injury to such . . . officer . . . ."² CGS § 53a-167c(a)(1). Though the statute is entitled "Assault of public safety or emergency medical personnel," it provides a specific list of public safety employees who are covered under the statute. Id. The list starts with "peace officer[s]," but also includes many other categories of public safety personnel, including, among others, firefighters, probation officers, and employees of the Department of Children and Families.³ Id. Peace officer is defined elsewhere in the CGS as:

a member of the Division of State Police . . . or an organized local police department, a chief inspector or inspector in the Division of Criminal Justice, a state marshal while exercising authority granted under any provision of the general statutes, a judicial marshal . . . , a conservation officer or special conservation officer, . . . a constable who performs criminal law enforcement...