Santapaola v. Ashcroft
| Decision Date | 13 March 2003 |
| Docket Number | No. 3:02 CV 14340(GLG).,3:02 CV 14340(GLG). |
| Citation | 249 F.Supp.2d 181 |
| Parties | Sebastiano SANTAPAOLA, Petitioner, v. John ASHCROFT, Attorney General of the United States, Respondent. |
| Court | U.S. District Court — District of Connecticut |
Michael G. Moore, Law Offices of Maria De Castro Foden, Hartford, CT, for Petitioner.
William M. Brown, Jr., U.S. Attorney's Office, New Haven, CT, for Respondent.
The sole issue presented by this petition for writ of habeas corpus [Doc. #1] is whether petitioner's conviction for risk of injury to a minor under Conn. Gen.Stat. § 53-21 (1996) constitutes a conviction for a "crime of violence" or "sexual abuse of a minor," which are "aggravated felonies" under the Immigration and Nationality Act ("INA"). This appears to be an issue of first impression. Our resolution of this issue is complicated by the breadth of the statute, the significant judicial gloss placed on the statute by the Connecticut Supreme Court,1 and the fact that the statute has been amended several times. Nevertheless, finding the statute to be divisible and after applying a categorical approach, we conclude that petitioner's conviction for risk of injury to a minor constitutes a conviction for an aggravated felony, thus rendering him subject to deportation. We, therefore, deny his petition for writ of habeas corpus and lift the stay of deportation.
Petitioner, a citizen of Italy, emigrated to the United States in 1975. (Gov't's Ex. A.) In 1997, he pled guilty to the crimes of risk of injury to a minor under Conn. Gen.Stat. § 53-212 and fourth degree sexual assault under Conn. Gen.Stat. § 53a-73a.3 He was sentenced to eight years confinement for the risk of injury conviction (execution of sentence suspended after one year with five years probation) and one year for sexual assault, his sentences to run concurrently. (Gov't's Ex. B & C.)4
On July 16, 1998, the Immigration and Naturalization Service ("INS") commenced removal proceedings against petitioner. The initial notice to appear charged petitioner with deportability under INA § 237(a)(2)(A)(ii), 8 U.S.C. § 1227(a)(2)(A)(ii), because of his conviction of two crimes involving moral turpitude not arising out of a single scheme of criminal misconduct. (Gov't's Ex. D.) On August 3, 1999, additional charges of deportability were lodged against petitioner under INA § 237(a)(2)(A)(iii), 8 U.S.C. § 1227(a)(2)(A)(iii), based upon his conviction of an aggravated felony, as defined in INA § 101(a)(43)(F), 8 U.S.C. § 1101(a)(43)(F),5 a crime of violence, as defined in 18 U.S.C. § 16, for which the term of imprisonment ordered was at least one year. On February 23, 2000, a third charge of deportability was lodged based upon petitioner's conviction of an aggravated felony, as defined in INA § 101(a)(43)(A), 8 U.S.C. § 1101(a)(43)(A), a law relating to "child abuse."6 (Gov't's Ex. E & F.)
A removal hearing was held on February 29, 2000,7 following which the Immigration Judge ("IJ") rendered his oral decision. The IJ held that there was insufficient evidence for the court to determine that the two convictions arose other than in a single scheme of criminal misconduct and, thus, petitioner was not deportable under INA § 237(a)(2)(A)(ii), as originally charged. (Gov't's Ex. ¶ at 3.) The IJ also found that petitioner's conviction under Conn. Gen.Stat. § 53a-73a for sexual assault in the fourth degree did not constitute a crime of violence because physical force was not a required element of that crime. (Gov't's Ex. ¶ at 3.) With respect to petitioner's conviction for risk of injury to a minor, the IJ held that Conn. Gen.Stat. § 53-21 was a divisible statute and that 8 Thus, he sustained the charge of deportability on the ground that petitioner's conviction for risk of injury to a minor was a "crime of violence," which falls within the definition of "aggravated felony." Additionally, he held that it was clear from the record of conviction and particularly the criminal transcript that the violation involved a minor victim, who was twelve years old, and "[cjertainly, sexual abuse of a minor is a form of child abuse." (Gov't's Ex. H at 4.) Therefore, he held that petitioner was deportable under INA § 237(a)(2)(A)(iii) based upon his conviction for risk of injury to a minor, an aggravated felony under both INA § 101(a)(43)(A)("sexual abuse of a minor") and INA § 101(a)(43)(F)("crime of violence") (Gov't's Ex. ¶ at 3-6.) On July 23, 2002, the Board of Immigration Appeals ("BIA") affirmed the decision of the IJ without opinion. (Gov't's Ex. I.) Petitioner then filed the instant petition for a writ of habeas corpus and a stay of removal.
Although petitioner does not indicate the jurisdictional basis for his habeas petition, we assume that it is brought pursuant to the general habeas statute, 28 U.S.C. § 2241, under which we may review his deportation order to determine whether it violates the Constitution, laws, or treaties of the United States. See INS v. St. Cyr, 533 U.S. 289, 121 S.Ct. 2271, 150 L.Ed.2d 347 (2001); Sol v. INS, 274 F.3d 648, 651 (2d Cir.2001), cert. denied, 536 U.S. 941, 122 S.Ct. 2624, 153 L.Ed.2d 807 (2002). Our jurisdiction under § 2241, however, does not extend to reviewing factual or discretionary determinations by the BIA.
In ruling on this petition for habeas corpus relief, we are required to defer to the agency's interpretation of the statutes it administers when the intent of Congress is unclear and the agency's interpretation is reasonable. See Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 842^3, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984); Mugalli v. Ashcroft, 258 F.3d 52, 55 (2d Cir.2001); Sutherland v. Reno, 228 F.3d 171, 174 (2d Cir.2000). In contrast to situations where the agency is interpreting a statute it is charged with administering, we owe no deference to the BIA's interpretation of state or federal criminal laws, because the BIA is not charged with administering those laws. See Sutherland, 228 F.3d at 174. Thus, we review the BIA's interpretation of state criminal statutes de novo. Id. (citing Michel v. INS, 206 F.3d 253, 262 (2d Cir. 2000)); see also Sui v. INS, 250 F.3d 105, 112-13 (2d Cir.2001)( that a court should afford deference to the BIA's interpretation, if reasonable, of the phrase "aggravated felony" set forth in the INA, but the court should review de novo the BIA's determination of whether the elements of a state-law conviction met that interpretation).
An alien may be deported if, while in this country, he is convicted at any time of an aggravated felony, INA § 237(a)(2)(A)(iii). 8 U.S.C. § 1227(a)(2)(A)(iii). "Aggravated felony" is then defined in INA § 101(a)(43), which lists 21 different crimes, including (1) "a crime of violence (as defined in section 16 of Title 18 ...) for which the term of imprisonment [is] at least one year," 8 U.S.C. § 1101(a)(43)(F), and (2) "sexual abuse of a minor." 8 U.S.C. § 1101(a)(43)(A). In defining "crime of violence," the INA adopts the definition set forth in the federal criminal statutes, which includes "(a) an offense that has an element the use, attempted use, or threatened use of physical force.... or (b) any other offense that is a felony and that, by its nature, involves a substantial risk that physical force against the person of another ... may be used in the course of committing the offense." 18 U.S.C. § 16; see Note 5, supra. No definition of "sexual abuse of a minor," however, is set forth in the INA or adopted therein by reference. The IJ found that petitioner's conviction for risk of injury to a minor, under Conn. Gen.Stat. § 53-21,9 constituted an aggravated felony under both of these sections.
Petitioner argues that the IJ erred as to both findings. First, he asserts, the IJ should have considered only the statute itself and the elements that must be proved thereunder, not the specific actions of petitioner in the commission of the crime. In that regard, because physical force or violence is not a required element of the statutory offense of risk of injury to a minor, petitioner maintains that it does not meet the definition of a "crime of violence" under INA § 101(a)(43)(F). Second, he argues that, in determining whether the offense of risk of injury constitutes "sexual abuse of a minor" under INA § 101(a)(43)(A), the IJ used an incorrect definition of "sexual abuse of a minor," and he urges this Court to adopt the more restrictive definition set forth in the criminal code, 18 U.S.C. §§ 2242, 2243, 2246. However, even when the broader definition is applied, petitioner contends that neither the statutory elements of risk of injury nor his actions meet the requirements for "sexual abuse of a minor." Therefore, he argues, the charge of deportation based upon his conviction of an aggravated felony is in violation of the laws of the United States.
A "crime of violence" under 18 U.S.C. § 16(b)10 has two constituent elements: (1) that it is a felony; and (2) that the crime, "by its nature," involves a substantial risk that physical force may be used. See Sutherland, 228 F.3d at 175; In re Sweetser, 22 I. & N. Dec. 709. There is no question that the crime of risk of injury to a minor under Conn. Gen.Stat. § 53-21 is a felony. The only question is whether this statutory offense "by its nature" involves a substantial risk that physical force may be used against the person of another in the course of committing the crime.
At the outset, petitioner argues that, in determining whether his...
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