Morris v. Holder

• Decision Date: 23 April 2012
• Docket Number: No. 10–4687–AG.,10–4687–AG.
• Citation: 676 F.3d 309
• Parties: Connell Stanley MORRIS, Petitioner, v. Eric H. HOLDER, Jr., Attorney General of the United States, Respondent.
• Court: U.S. Court of Appeals — Second Circuit

676 F.3d 309

Connell Stanley MORRIS, Petitioner,

v.Eric H. HOLDER, Jr., Attorney General of the United States, Respondent.

No. 10–4687–AG.

United States Court of Appeals, Second Circuit.

Submitted: Sept. 26, 2011.Decided: April 23, 2012.

Anne E. Doebler, Buffalo, New York, for Petitioner (on submission).

Kiley L. Kane, Office of Immigration Litigation, United States Department of Justice, Washington, District of Columbia (Tony West, Assistant Attorney General, Civil Division, and John S. Hogan, Senior Litigation Counsel, Office of Immigration Litigation, on the brief) for Respondent (on submission).

Before: WALKER, MCLAUGHLIN, and LIVINGSTON, Circuit Judges.

LIVINGSTON, Circuit Judge:

This appeal requires us to determine whether a conviction for second-degree assault pursuant to New York Penal Law § 120.05(2) is a “crime of violence” under 18 U.S.C. § 16(b) and therefore an “aggravated felony” for purposes of § 101(a)(43)(F) of the Immigration and Nationality Act (“INA”), 8 U.S.C. § 1101(a)(43)(F). We are also asked to determine whether the Supreme Court's decision in Padilla v. Kentucky, ––– U.S. ––––, 130 S.Ct. 1473, 176 L.Ed.2d 284 (2010), overturned the “long and constant line of precedent establish[ing] that statutes retroactively setting criteria for deportation do not violate the ex post facto clause” of the United States Constitution because “[d]eportation is a civil, not a criminal, proceeding.” Kuhali v. Reno, 266 F.3d 93, 111–12 (2d Cir.2001).

Petitioner Connell Stanley Morris, a native and citizen of Saint Vincent and the Grenadines admitted to the United States as a lawful permanent resident, was convicted of assault in the second degree pursuant to New York Penal Law § 120.05(2) and of attempted criminal possession of a controlled substance in the seventh degree in violation of New York Penal Law §§ 110 and 220.03. By order of October 19, 2010, and based on Morris's assault conviction, the Board of Immigration Appeals (“BIA”) upheld the November 20, 2009 oral decision of the Immigration Judge (“IJ”) ordering Morris removed from the United States as an alien convicted of an “aggravated felony.”

Morris raises two arguments in his petition. First, he contends that the BIA erred in holding that his New York State conviction for second-degree assault constitutes a “crime of violence” pursuant to 18 U.S.C. § 16(b) and is therefore an “aggravated felony” as defined in § 101(a)(43)(F) of the INA. ¹ Second, Morris contends that Padilla v. Kentucky, ––– U.S. ––––, 130 S.Ct. 1473, 176 L.Ed.2d 284 (2010), overturns the substantial body of precedent holding that deportation and removal proceedings are civil in nature and thus do not implicate the Ex Post Facto Clause. As a result, he argues that the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (“IIRIRA”), Pub.L. No. 104–208, div. C, 110 Stat. 3009–546, which expanded the INA's definition of “aggravated felony” to include “a crime of violence” (as defined in 18 U.S.C. § 16) that results in a prison sentence of one year or more, see 8 U.S.C. § 1101(a)(43)(F) (as added by IIRIRA § 321, 110 Stat. at 3009–627), should not apply retroactively to his 1993 assault conviction.

For the reasons stated below, we reject each of these contentions. We conclude that second-degree assault under New York Penal Law § 120.05(2) does constitute a “crime of violence” within the meaning of 18 U.S.C. § 16(b) and an “aggravated felony” under 8 U.S.C. § 1101(a)(43)(F). We further conclude that the decision in Padilla does not alter longstanding precedent holding that deportation is a civil proceeding and that, as a result, statutes retroactively setting criteria for deportation do not implicate the Ex Post Facto Clause.

With these questions decided, we lack jurisdiction to further review the order of removal in this case. Accordingly, we dismiss Morris's petition for review.

Background

Morris, a native and citizen of Saint Vincent and the Grenadines, was admitted to the United States as a lawful permanent resident on August 17, 1980. On July 9, 1993, Morris pleaded guilty in New York State to a charge of assault in the second degree in violation of New York Penal Law § 120.05(2); he was sentenced to five years' probation on August 23, 1993. Morris was found to be in violation of his probation on August 25, 1994, and was resentenced to a term of one year of imprisonment on September 14, 1994.

On September 20, 2001, Morris pleaded guilty for a second time in New York State, this time to the offense of attempted criminal possession of a controlled substance in the seventh degree in violation of New York Penal Law §§ 110 and 220.03. Morris was sentenced to one year of probation for this offense.

On July 30, 2008, the Department of Homeland Security (“DHS”) instituted removal proceedings against Morris on the ground that his 1993 New York State conviction for second-degree assault rendered him an aggravated felon, and on the additional ground that he had been convicted of a controlled substance violation. See 8 U.S.C. § 1227(a)(2)(A)(iii), (B)(i). At a hearing before an IJ on November 20, 2009, Morris, who was represented by counsel, admitted his second-degree assault conviction but challenged removability on the basis that his conviction for second-degree assault should not be considered a “crime of violence” within the meaning of 18 U.S.C. § 16(b). Morris further contended that he was entitled to a waiver of inadmissibility under INA § 212(c), 8 U.S.C. § 1182(c), and that in addition to a § 212(c) waiver or in the alternative, he was entitled to cancellation of removal pursuant to 8 U.S.C. § 1229b(a).

By oral decision of November 20, 2009, the IJ rejected these challenges as without merit and ordered Morris removed to Saint Vincent and the Grenadines. The IJ found that Morris's assault conviction qualified as an “aggravated felony” for purposes of § 101(a)(43)(F) of the INA because second-degree assault is a “crime of violence” as defined in 18 U.S.C. § 16(b). The IJ also concluded that Morris's conviction for attempted possession constituted a controlled substance violation under 8 U.S.C. § 1227(a)(2)(B)(i).

With respect to Morris's petition for a § 212(c) waiver, the IJ determined that Morris was not eligible for such a waiver and that, in any event, Morris could not obtain relief through simultaneous consideration of applications for cancellation of removal and § 212(c) relief. The IJ reasoned that regardless of the grant of a § 212(c) waiver, Morris was rendered ineligible for cancellation of removal due to his aggravated felony conviction.

Morris appealed to the BIA, which affirmed the IJ's decision on October 19, 2010. In reaching the conclusion that Morris's assault conviction constituted an aggravated felony, the BIA relied on our decision in United States v. Walker, 442 F.3d 787 (2d Cir.2006), which held that a conviction for second-degree assault under New York Penal Law § 120.05(2) constituted a conviction for a violent felony for purposes of the Armed Career Criminal Act (“ACCA”), 18 U.S.C. § 924(e). The BIA also agreed with the IJ that Morris could not obtain relief from removal through simultaneous petitions for cancellation of removal and § 212(c) relief, given that his aggravated felony conviction rendered him ineligible for cancellation.

On November 17, 2010, Morris petitioned this Court for review of the BIA's decision. On appeal, Morris contends that the BIA and the IJ erred in classifying his second-degree assault conviction as a “crime of violence.” He further contends that, even assuming arguendo that his conviction qualifies as a “crime of violence,” IIRIRA's expanded definition of “aggravated felony” should not apply retroactively to his assault conviction. Although Morris acknowledges the longstanding precedent holding that the Ex Post Facto Clause is not implicated in deportation proceedings, he contends that the Supreme Court's decision in Padilla v. Kentucky, ––– U.S. ––––, 130 S.Ct. 1473, 176 L.Ed.2d 284 (2010), overturned this precedent, and that therefore the Ex Post Facto Clause bars the retroactive application of IIRIRA to his assault conviction.²

Discussion

“Where, as here, the BIA adopts the decision of the IJ and merely supplements the IJ's ... decision, we review the decision of the IJ as supplemented by the BIA.” Guamanrrigra v. Holder, 670 F.3d 404, 409 (2d Cir.2012) (internal quotation marks omitted).

I. Jurisdiction

We lack jurisdiction to review any final order of removal against an alien who is removable because he has committed an aggravated felony as defined in 8 U.S.C. § 1227(a)(2)(A)(iii). See 8 U.S.C. § 1252(a)(2)(C). We retain jurisdiction, however, to determine constitutional claims and questions of law that arise from BIA proceedings. See 8 U.S.C. § 1252(a)(2)(D). Whether an offense is an aggravated felony for purposes of the immigration laws is a question of law. See Blake v. Gonzales, 481 F.3d 152, 155–56 (2d Cir.2007). We review this issue de novo. Pierre v. Gonzales, 502 F.3d 109, 113 (2d Cir.2007). We likewise retain jurisdiction to consider Morris's constitutional claim.

At the outset, we reject the Respondent's contention that we must dismiss Morris's petition for lack of jurisdiction on the theory that regardless of whether Morris's assault conviction constitutes an “aggravated felony” (or, presumably, whether the Constitution permits the retroactive application of the current definition of “aggravated felony” to him) there is no dispute that Morris is removable on the basis of his controlled substance conviction. Even assuming that Morris is removable on this basis alone, this conviction did not render him ineligible for cancellation of removal. See 8 U.S.C. §§ 1101(a)(43), 1229b(a)(3). The IJ concluded, and the BIA agreed, that Morris was ineligible for cancellation because it found that Morris's assault conviction constitutes an “aggravated felony.” Although we lack jurisdiction...