Lanferman v. Board of Immigration Appeals

• Decision Date: 05 August 2009
• Docket Number: Docket No. 06-3432-ag.
• Citation: 576 F.3d 84
• Parties: Roderick LANFERMAN, Petitioner, v. BOARD OF IMMIGRATION APPEALS, Executive Office for Immigration Review, U.S. Department of Justice, Eric H. Holder, Jr., Bureau of Immigration & Custom Enforcement, as successor to the Immigration and Naturalization Service, Department of Homeland Security, Janet Napolitano,<SMALL><SUP>*</SUP></SMALL> Respondents.
• Court: U.S. Court of Appeals — Second Circuit

576 F.3d 84

Roderick LANFERMAN, Petitioner, v. BOARD OF IMMIGRATION APPEALS, Executive Office for Immigration Review, U.S. Department of Justice, Eric H. Holder, Jr., Bureau of Immigration & Custom Enforcement, as successor to the Immigration and Naturalization Service, Department of Homeland Security, Janet Napolitano,^* Respondents.

Docket No. 06-3432-ag.

United States Court of Appeals, Second Circuit.

Argued: May 30, 2007.

Decided: August 5, 2009.

Adam Paskoff, Paskoff & Tamber, LLP, New York, NY, for Petitioner.

Paul Naman, Assistant United States Attorney, for Matthew D. Orwig, United States Attorney for the Eastern District of Texas, Beaumont, TX, for Respondent.

Before: KEARSE, STRAUB, and POOLER, Circuit Judges.

PER CURIAM:

Petitioner Roderick Lanferman, a native of Guyana, seeks review of a June 22, 2006, decision of the Board of Immigration Appeals ("BIA"), affirming the March 18, 2005, order of Immigration Judge ("IJ") Philip J. Montante, Jr., finding Lanferman removable under Section 237(a)(2)(C) of the Immigration and Nationality Act ("INA"), 8 U.S.C. § 1227(a)(2)(C), for having committed a firearm-related offense. Lanferman makes two arguments on appeal. We reject the first—that his guilty plea was obtained in violation of his constitutional rights—because it is a collateral attack on his state conviction. However, as to the second—that the government has not established conviction of a firearm-related offense by clear and convincing evidence—we are bound by James v. Mukasey, 522 F.3d 250 (2d Cir.2008), and therefore remand to the BIA to decide the initial issue of whether Section 120.14 of New York Penal Law is divisible under the modified categorical approach. Accordingly, we grant the petition for review, vacate the order of the BIA, and remand to the agency for further proceedings consistent with this opinion.

BACKGROUND

Lanferman arrived in the United States as a lawful permanent resident in 1990. On August 8, 1996, he was convicted in Bronx Criminal Court for the offense of menacing in the second degree in violation of Section 120.14 of New York Penal Law, a misdemeanor. The underlying complaint includes a brief narrative describing the events that led to the conviction: in the course of a dispute with his wife, Lanferman allegedly threatened her with a loaded revolver. Lanferman was originally charged with several firearm-related felonies in addition to the menacing count, but the firearm charges were later dropped when Lanferman, with the assistance of a Legal Aid attorney, pleaded guilty to the menacing charge.

On September 11, 2001, the government commenced removal proceedings against Lanferman by issuing a notice to appear ("NTA"). On September 26, 2002, the government filed a superseding NTA charging Lanferman with removability under Section 237(a)(2)(C) of the INA, 8 U.S.C. § 1227(a)(2)(C), based on his conviction for menacing, which involved a firearm. Lanferman sought termination of removal proceedings and cancellation of removal under Section 240A(a) of the INA, 8 U.S.C. § 1229b(a). On May 29, 2003, the IJ issued a decision denying Lanferman's motion to terminate and denying cancellation of removal. Lanferman appealed that decision to the BIA, arguing that he pleaded guilty to an offense under Section 120.14 of New York Penal Law, which has three subsections, and did not, as the IJ found, plead guilty under Section 120.14(1) of New York Penal Law, the only one of the three subsections that refers specifically to weapons, including firearms. On this ground, the BIA found that the IJ's decision was "inadequate for proper review" and remanded for further proceedings.

On March 18, 2005, the IJ issued a revised decision reaffirming his previous finding that Lanferman was removable for having committed a firearm offense. The IJ explained that because Section 120.14 of New York Penal Law "encompasses an offense that constitutes a firearm violation and offenses that do not," it is necessary to look to the record of conviction—which includes the criminal complaint, plea colloquy, and certificate of disposition—to determine whether Lanferman's offense constitutes a firearm violation under Section 237(a)(2)(C) of the INA. The IJ observed that the state complaint charges Lanferman with menacing in the second degree in violation of Section 120.14 of New York Penal Law, and specifies that Lanferman "pulled out a Hopkins and Allen Armes Co. .32 s/w CAL. revolver loaded with four live rounds, and pointed the revolver at the victim, placing her in reasonable fear of physical injury, serious physical injury or death." The IJ also relied on the transcript of the plea colloquy, which includes the following:

THE COURT: Do you admit on August 2, 1996, at approximately 12:10 a.m., you were at 654 East 125th Street, County of the Bronx, State of New York, and that you did commit the offense of menacing, is that right?

THE DEFENDANT: Yes, Ma'am.

THE COURT: In that you did pull out a revolver and point the revolver at the complainant, Ms. Lanferman, and menace her with that weapon, is that right?

THE DEFENDANT: Yes, Ma'am.

Thus, the IJ found Lanferman "removable as charged under [S]ection 237(a)(2)(C) by evidence that is clear, unequivocal, and convincing."

On June 22, 2006, the BIA affirmed the IJ's determination that Lanferman was removable based on his conviction for a firearm offense. In reaching this conclusion, the BIA specifically referred to the factual allegations in the criminal complaint and directly quoted those portions of the plea colloquy relied on by the IJ. The BIA also upheld the IJ's denial of cancellation of removal.

On July 21, 2006, Lanferman petitioned this court for review of the BIA decision.

DISCUSSION

We generally lack jurisdiction to review final orders of removal based on an alien's conviction for certain crimes, including firearm offenses. See 8 U.S.C. § 1252(a)(2)(C). However, we retain jurisdiction to review "constitutional claims or question of law," 8 U.S.C. § 1252(a)(2)(D), including whether a particular conviction constitutes a removable offense under the INA, see Blake v. Gonzales, 481 F.3d 152, 155-56 (2d Cir.2007).

1. The Guilty Plea

On appeal, Lanferman first argues that the agency erred in relying on his guilty plea, because that plea was obtained in violation of certain constitutional rights. This "contention is nothing more than a collateral attack on his state conviction. Collateral attacks are not available in a ... petition challenging the BIA's removal decision." Abimbola v. Ashcroft, 378 F.3d 173, 181 (2d Cir.2004); see also Vargas v. Dep't of Homeland Sec., 451 F.3d 1105, 1107 (10th Cir.2006); Taylor v. United States, 396 F.3d 1322, 1330 (11th Cir.2005); Mendez-Alcaraz v. Gonzales, 464 F.3d 842, 844 n. 14 (9th Cir.2006); Drakes v. INS, 330 F.3d 600, 606 (3d Cir. 2003); Mansoori v. INS, 32 F.3d 1020, 1024 (7th Cir.1994).¹ Accordingly, Lanferman's first argument fails.

2. Categorical Analysis of Section 120.14 of New York Penal Law

Lanferman next contends that the government has not established conviction of a firearm offense by clear and convincing evidence. Pursuant to Section 237(a)(2)(C) of the INA, noncitizens who commit certain firearm offenses are deportable. See 8 U.S.C. § 1227(a)(2)(C).² Because the BIA is responsible for administering the INA, we grant deference to the Board's interpretation of this removal provision under Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 842-43, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984). See Kuhali v. Reno, 266 F.3d 93, 102 (2d Cir.2001). Thus, we have specifically upheld as reasonable the BIA's view that Section 237(a)(2)(C) "encompass[es] convictions of crimes for which possessing or carrying firearms is an element." Id. at 103. We owe no deference, however, "to the Board in its interpretation of criminal statutes that it does not administer." Id. at 102. Therefore, we review de novo the BIA's determination "that an offense, as defined by a particular criminal statute, falls within [the] terms" of a removal provision of the INA. Id.

In assessing an alien's removability, we have adopted "a categorical approach that looks to the elements of the offense as defined by statute, rather than to the particular facts of the alien's criminal activity." Id. at 103; see Dulal-Whiteway v. U.S. Dep't of Homeland Sec., 501 F.3d 116, 124-27 (2d Cir.2007) (discussing development of categorical approach), abrogated on other grounds by Nijhawan v. Holder, ___ U.S. ___, 129 S.Ct. 2294, 2298, 174 L.Ed.2d 22 (2009). In some instances, however, a statute may be subject to what we have termed the "modified categorical approach," which allows for limited review of the record. See, e.g., Dulal-Whiteway, 501 F.3d at 122. The modified categorical approach calls for a two-step inquiry: "first, we determine if the statute is `divisible,' such that some categories of proscribed conduct render an alien removable and some do not; second, we consult the record of conviction to ascertain the category of conduct of which the alien was convicted." Id. at 126.³ When we review the record of conviction, "the [modified] categorical approach permits inquiry into the fact of conviction of a specific offense but prohibits reference to or examination of the particular factual circumstances underlying that conviction." Dickson v. Ashcroft, 346 F.3d 44, 52 (2d Cir.2003);⁴ see also Alsol v. Mukasey, 548 F.3d 207, 216 n. 8 (2d Cir.2008) ("[E]ven under the modified categorical approach, the focus remains on the actual offense of conviction.").

In giving his plea, Lanferman stated only that he was pleading guilty to a violation of Section 120.14 of New York Penal Law. That Section states:

A person is guilty of menacing in the second degree when:

1. He or she intentionally places or attempts to place another person in reasonable fear of physical injury, serious physical injury or death by displaying a deadly...