Dickson v. Ashcroft

• Decision Date: 09 September 2003
• Docket Number: No. 02-4102.,02-4102.
• Citation: 346 F.3d 44
• Parties: John P. DICKSON, Petitioner, v. John ASHCROFT, Attorney General of the United States of America, Respondent.
• Court: U.S. Court of Appeals — Second Circuit

Page 44

346 F.3d 44

John P. DICKSON, Petitioner, v. John ASHCROFT, Attorney General of the United States of America, Respondent.

No. 02-4102.

United States Court of Appeals, Second Circuit.

Argued: May 15, 2003.

Decided: September 9, 2003.

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George A. Terezakis, Mineola, NY, for Petitioner.

Rebecca C. Martin, Assistant United States Attorney (James B. Comey, United States Attorney for the Southern District of New York, Kathy S. Marks, Gideon A. Schor, of counsel), New York, NY, for Respondent.

Terry A. Maroney, Wilmer, Cutler & Pickering, New York, NY (Paul A. Engelmayer, Anjan Sahni, Wilmer, Cutler & Pickering, New York, NY; Jonathan E. Gradess, Manuel D. Vargas, New York State Defenders Association, New York, NY; Joshua L. Dratel, National Association of Criminal Defense Lawyers and New York State Association of Criminal Defense Lawyers, New York, NY, on the brief) for amici curiae New York State Defenders Association, New York State Association of Criminal Defense Lawyers, and National Association of Criminal Defense Lawyers.

Before: McLAUGHLIN, LEVAL, and SOTOMAYOR, Circuit Judges.

SOTOMAYOR, Circuit Judge.

Petitioner John Dickson petitions for review of the decision of the Board of Immigration Appeals ("BIA") ordering him removed for having been convicted of an aggravated felony. Under the categorical approach to criminal statutory interpretation, we hold that the state-law crime of unlawful imprisonment in the first degree is divisible into crimes that are categorically grounds for removal and others that are not. Accordingly, the BIA was permitted to consult the record of conviction to determine the specific crime for which Dickson was convicted. In assessing whether Dickson's conviction was for a removable offense, however, the BIA improperly relied upon the narrative statement of facts contained in the pre-sentence report that was prepared for Dickson's criminal proceedings. We accordingly grant Dickson's petition for review, vacate the BIA's decision, and remand to the BIA with directions to order a new removal hearing.

BACKGROUND

I. Factual Background

Petitioner John Dickson is a native and citizen of Jamaica. He entered the United States in 1986, at the age of six, on a nonimmigrant visitor's visa. In 1998, Dickson adjusted his status to lawful permanent resident. His wife and infant son are both citizens of the United States.

In August 2000, Dickson was arrested on the basis of a complaint by his then-girlfriend (who is now his wife). In December 2000, Dickson pled guilty to unlawful imprisonment in the first degree, pursuant to N.Y. Penal Law § 135.10 (McKinney 2003) ("NYPL § 135.10"). He was sentenced in February 2001 to a prison term of one to three years.

In May 2001, during Dickson's incarceration, the Immigration and Naturalization Service ("INS") served Dickson with a Notice to Appear, charging that he was removable pursuant to § 237(a)(2)(A)(iii) of the Immigration and Nationality Act ("INA") (codified at 8 U.S.C. § 1227(a)(2)(A)(iii)) as an alien convicted of an aggravated felony. During removal proceedings before the Immigration Judge ("IJ"), the INS attorney attached to her memorandum of law the pre-sentence report ("PSR") that had been prepared for Dickson's state criminal proceedings. The IJ referred to facts contained in the PSR during the removal proceedings and ultimately decided that Dickson's conviction for unlawful imprisonment constituted an aggravated felony. The IJ found that Dickson was not eligible for any form of relief from removal, and ordered him removed to Jamaica.

Dickson appealed the IJ's decision to the BIA. Dickson asserted, inter alia, that unlawful imprisonment is not an aggravated felony, and that the PSR was inadmissible in the removal proceedings and should not have been considered by the IJ. The BIA rejected Dickson's arguments, affirmed the decision of the IJ, and dismissed Dickson's appeal. Dickson petitions this Court for review of the BIA's decision.

II. Statutory Background

INA § 237(a)(2)(A)(iii) provides that "[a]ny alien who is convicted of an aggravated felony at any time after admission is deportable." Among the criminal convictions that fall within the INA's definition of an aggravated felony is a conviction for "a crime of violence (as defined in [18 U.S.C. § 16], but not including a purely political offense) for which the term of imprisonment [is] at least one year." INA § 101(a)(43)(F) (codified at 8 U.S.C. § 1101(a)(43)(F)). A "crime of violence" is in turn defined in the federal criminal code as:

(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 New York state criminal code provides that "[a] person is guilty of unlawful imprisonment in the first degree when he restrains another person under circumstances which expose the latter to a risk of serious physical injury." NYPL § 135.10. The word "restrain" is further defined as follows:

"Restrain" means to restrict a person's movements intentionally and unlawfully in such manner as to interfere substantially with his liberty by moving him from one place to another, or by confining him either in the place where the restriction commences or in a place to which he has been moved, without consent and with knowledge that the restriction is unlawful. A person is so moved or confined "without consent" when such is accomplished by (a) physical force, intimidation or deception, or (b) any means whatever, including acquiescence of the victim, if he is a child less than sixteen years old or an incompetent person and the [custodial parent or institution] has not acquiesced in the movement or confinement.

N.Y. Penal Law § 135.00(1) (McKinney 2003) ("NYPL § 135.00(1)").

DISCUSSION

I. Jurisdiction and Standard of Review

INA § 242(a)(2)(C) (codified at 8 U.S.C. § 1252(a)(2)(C)) precludes review of "any final order of removal against an alien who is removable by reason of," inter alia, having been convicted of an aggravated felony. We do have jurisdiction, however, to determine whether this jurisdictional bar applies. See Dalton v. Ashcroft, 257 F.3d 200, 203 (2d Cir.2001); Bell v. Reno, 218 F.3d 86, 89 (2d Cir.2000). We may thus review the BIA's legal finding that Dickson was convicted of an aggravated felony. See Dalton, 257 F.3d at 203; Bell, 218 F.3d at 89.

The BIA's interpretation of ambiguous provisions in the INA, a statute it is charged with administering, must be granted substantial deference unless "arbitrary, capricious, or manifestly contrary to the statute." Chevron, U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 844, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984); see also Mardones v. McElroy, 197 F.3d 619, 624 (2d Cir.1999). We review de novo, however, the BIA's interpretation of state or federal criminal statutes. Dalton, 257 F.3d at 203. Because the INA defines aggravated felony with reference to "crimes of violence" as defined in the federal criminal code, see 18 U.S.C. § 16, and because this case also involves interpretation of the state crime of unlawful imprisonment, we review de novo the question whether NYPL § 135.10 is a crime of violence. See Dalton, 257 F.3d at 203.

II. Whether Unlawful Imprisonment is a Crime of Violence Pursuant to 18 U.S.C. § 16

As noted above, § 16 requires consideration of whether an offense either has as an element the use or threatened use of physical force, or "by its nature" involves a substantial risk of the use of physical force. We have held that in determining whether an offense is a crime of violence under § 16, a "categorical approach" to criminal statutory interpretation must be applied. Dalton, 257 F.3d at 204-05. In describing the categorical approach, we have held that every set of facts violating a statute must satisfy the criteria for removability in order for a crime to amount to a removable offense; the BIA may not justify removal based on the particular set of facts underlying an alien's criminal conviction. See Sui v. INS, 250 F.3d 105, 116-18 (2d Cir.2001); see also Dalton, 257 F.3d at 204. The categorical approach focuses on "the intrinsic nature of the offense rather than on the factual circumstances surrounding any particular violation." Id. at 204 ("[T]he singular circumstances of an individual petitioner's crimes should not be considered, and only the minimum criminal conduct necessary to sustain a conviction under a given statute is relevant[.]" (quoting Michel v. INS, 206 F.3d 253, 270 (2d Cir.2000) (Calabresi, J., dissenting)) (internal quotation marks omitted)).

Where, however, a criminal statute encompasses diverse classes of criminal acts — some of which would categorically be grounds for removal and others of which would not — we have held that such statutes can be considered "divisible" statutes. See Kuhali v. Reno, 266 F.3d 93, 106 (2d Cir.2001) (holding that a federal statute prohibiting the export of certain classes of firearms and ammunition was divisible, because violation of the statute with regard to firearms would be a removable offense, while violation of the statute with regard to ammunition might not be); Sui, 250 F.3d at 118 (holding that a statute that prohibited "mak[ing], utter[ing] or possess[ing] a counterfeited security" was divisible, because the determination of whether an alien was removable could vary "depending on whether he or she had been convicted alternatively of making, possessing, or uttering counterfeit securities").

In reviewing a conviction under a divisible statute, the categorical approach permits reference to the record of conviction for the limited purpose of determining whether the alien's conviction was under the...