Henry v. Bureau of Immigration & Customs Enforce.

• Decision Date: 11 July 2007
• Docket Number: No. 05-3064.,05-3064.
• Citation: 493 F.3d 303
• Parties: Derick Anthony HENRY, Petitioner v. BUREAU OF IMMIGRATION AND CUSTOMS ENFORCEMENT, Respondent.
• Court: U.S. Court of Appeals — Third Circuit

493 F.3d 303

Derick Anthony HENRY, Petitioner v. BUREAU OF IMMIGRATION AND CUSTOMS ENFORCEMENT, Respondent.

No. 05-3064.

United States Court of Appeals, Third Circuit.

Argued April 12, 2007.

Filed: July 11, 2007.

Ronald P. Schiller, Esquire, Jacqueline R. Dungee, Esquire, (Argued), DLA Piper U.S. LLP, Philadelphia, PA, for Petitioner.

Linda S. Wernery, Esquire, Douglas E. Ginsburg, Esquire, Thankful T. Vanderstar, Esquire, Alison M. Igoe, Esquire, John D. Williams, Esquire, Ada E. Bosque, Esquire, (Argued), United States Department of Justice, Office of Immigration Litigation Washington, DC, for Respondent.

Before: SMITH and COWEN, Circuit Judges, and YOHN, District Judge.^*

OPINION OF THE COURT

YOHN, District Judge.

Derick A. Henry petitions for review of a final order by the Board of Immigration Appeals ("BIA") that ordered Henry removed. The BIA held that Henry's conviction of criminal possession of a weapon in the second degree under New York Penal Law Section 265.03 (" § 265.03") constitutes a crime of violence under 18 U.S.C. § 16(b) and, therefore, an aggravated felony supporting removal. For the reasons stated herein, we will affirm the BIA and deny Henry's petition for review.

I. Factual and Procedural History

Henry is a native of Jamaica and has been a lawful permanent resident since January 3, 1990. In 2000, Henry was arrested in New York and subsequently pleaded guilty to criminal possession of a weapon in the second degree under § 265.03. The specific charge in the Indictment to which Henry pleaded guilty stated: "The defendant, in the County of Westchester and State of New York, on or about April 8, 1999, did possess a loaded firearm, to wit, a .357 Magnum caliber Astro revolver, with intent to use the same unlawfully against another person. This is an Armed Felony Offense." Section 265.03 provides:

A person is guilty of criminal possession of a weapon in the second degree when:

(1) with intent to use the same unlawfully against another, such person:

(a) possesses a machine-gun; or

(b) possesses a loaded firearm; or

(c) possesses a disguised gun; or

(2) such person possesses five or more firearms; or

(3) such person possesses any loaded firearm. Such possession shall not, except as provided in subdivision one or seven of section 265.02 of this article, constitute a violation of this subdivision if such possession takes place in such person's home or place of business.

Criminal possession of a weapon in the second degree is a class C felony. § 265.03. Henry was sentenced to four years of imprisonment.

Based on this conviction, the Department of Homeland Security ("DHS") charged Henry with removabilty pursuant to 8 U.S.C. § 1227(a)(2)(C) for possession of a firearm and pursuant to § 1227(a)(2)(A)(iii) as an aggravated felon.¹ Section 240(A) of Immigration and Nationality Act, 8 U.S.C. § 1229b, allows for the cancellation of removal of certain permanent residents, but specifically precludes cancellation in the case of an alien who has been convicted of an aggravated felony. The term "aggravated felony" is defined by 8 U.S.C. § 1101(a), and includes a crime of violence, as defined by 18 U.S.C. § 16. See § 1101(a)(43)(F).

The Immigration Judge ("IJ") found Henry removable for having been convicted of a firearms offense but, after reviewing Henry's history and testimony, the IJ exercised his discretion to cancel the removal of Henry as permitted pursuant to § 1229b.

The IJ also concluded that Henry's conviction did not constitute an aggravated felony. The DHS appealed the IJ's decision to the BIA, arguing that the IJ had incorrectly held that Henry had not committed an aggravated felony. The BIA reversed, holding that Henry's conviction of criminal possession in the second degree constituted an aggravated felony because "a crime that involves possession of a loaded firearm with the intent to use the firearm unlawfully against another, `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 was thus a crime of violence. (J.A. 010 (quoting § 16(b)).) As such, Henry was ineligible for cancellation of removal and the BIA ordered him removed. Henry timely filed a petition for review.

II. Jurisdiction and Standard of Review

Under the REAL ID Act, we exercise jurisdiction to review "constitutional claims or questions of law raised upon a petition for review." 8 U.S.C. § 1252(a)(2)(D). Whether Henry's conviction constitutes an aggravated felony presents a question of law within our subject matter jurisdiction over which we exercise plenary review. Garcia v. Att'y Gen. of U.S., 462 F.3d 287, 291 (3d Cir.2006). We do not defer to the BIA's determination of whether a crime constitutes an aggravated felony. Singh v. Ashcroft, 383 F.3d 144, 151 (3d Cir.2004).

III. Discussion

The issue before us is whether Henry's conviction for criminal possession of a firearm constitutes an aggravated felony. The term "aggravated felony" is defined by § 1101(a) as, inter alia, "a crime of violence (as defined in section 16 of title 18, United States Code, but not including a purely political offense) for which the term of imprisonment [is] at least one year." § 1101(a)(43)(F). In turn, under § 16:

The term "crime of violence" means—

(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.²

§ 16. Because an alien convicted of an aggravated felony is ineligible for cancellation of removal pursuant to § 1229b, if Henry's crime constitutes an aggravated felony, then the BIA correctly ordered Henry removed. If not, the petition for review should be granted.

To determine if a person was convicted of a crime of violence within the meaning of § 16, the court employs the "categorical" approach. Oyebanji v. Gonzales, 418 F.3d 260, 262 (3d Cir.2005) (citing Taylor v. United States, 495 U.S. 575, 602, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990)). This requires us "to look to the elements and the nature of the offense of conviction, rather than to the particular facts relating to petitioner's crime." Leocal v. Ashcroft, 543 U.S. 1, 7, 125 S.Ct. 377, 160 L.Ed.2d 271 (2004). However, the categorical approach does not bar us from determining which numbered subsection was violated where, as here, the disjunctive phrasing of the statute of conviction invites inquiry into the specifics of the conviction. Tran v. Gonzales, 414 F.3d 464, 469 n. 4 (3d Cir.2005); Singh, 383 F.3d at 162. Accordingly, we examine the conduct covered by § 265.03(1)(b)—possession of a loaded firearm with intent to use the same unlawfully against another.

In Leocal, the Supreme Court addressed the mental state necessary for a crime of violence under § 16(b) and held that § 16(b) "requir[es] a higher mens rea than [ ] merely accidental or negligent conduct." Leocal, 543 U.S. at 11, 125 S.Ct. 377. In Tran, decided after Leocal, we reaffirmed our precedent from United States v. Parson, 955 F.2d 858 (3d Cir. 1992), which held that neither does a reckless state of mind suffice to satisfy the requirements of § 16(b). Tran, 414 F.3d at 470-72. Accordingly, " § 16(b) crimes are those raising a substantial risk that the actor will intentionally use force in the furtherance of the offense." Id. at 471 (emphasis omitted). Stated another way, "a crime of violence under § 16(b) must involve a substantial risk that the actor will intentionally use physical force in committing his crime." Id. at 472. Thus, applying the categorical approach and our § 16(b) jurisprudence, our inquiry is whether the possession of a loaded firearm with intent to use the same unlawfully against another involves a substantial risk that the actor will intentionally use physical force in committing his crime.

This court has already addressed this same question, albeit under different statutes. In the case Impounded, 117 F.3d 730 (3d Cir.1997), a panel of this court considered whether a juvenile had committed an act within a class of crimes defined by 18 U.S.C. § 5032 so as to render him subject to mandatory transfer from juvenile status to prosecution as an adult in federal district court. Impounded, 117 F.3d at 731. The language of § 5032 that defines acts mandating transfer is in all material respects identical to § 16(b): "a juvenile who is alleged to have committed an act . . . which if committed by an adult would be a felony offense . . . that, by its very nature, involves a substantial risk that physical force against the person of another may be used in committing the offense." § 5032. Although the juvenile was charged with other crimes that clearly met the definition of an act mandating transfer, the panel specifically examined the possession crime with which the juvenile was charged. Impounded, 117 F.3d at 737 n. 10. The court employed the categorical approach, looking at the statute of conviction, Section 2251(a)(2) of Title Fourteen of the Virgin Islands Code ("§ 2251(a)(2)"), to determine whether it met the definition in § 5032. Id. at 738 & n. 11. The language of the possession crime at issue in Impounded tracks the language of the New York criminal statute under which Henry was convicted, punishing a person who "with intent to use the same unlawfully against another, has, possesses, bears, transports, carries or has under his proximate control, a dagger, dirk, dangerous knife, razor, stiletto, or any other dangerous or deadly weapon." § 2251(a)(2). Examining two statutes that for all relevant purposes are identical to the statute of conviction and enumerating statute applicable to Henry, we concluded in Impounded: "Certainly if someone intends to use a dangerous weapon then...