Singh v. Garland ( 2023 )

19-2910
Singh v. Garland
United States Court of Appeals
for the Second Circuit
_____________________________________
November Term 2022
Submitted: November 7, 2022 Decided: November 16, 2022
Per Curiam: January 19, 2023 ∗
No. 19-2910
_____________________________________
GORAKH NAUTH SINGH, AKA GORAKH N. SINGH, AKA GURAKH SINGH, AKA
GORAKH O. SINGH, AKA GURAKA SINGH,
Petitioner,
— v. —
MERRICK B. GARLAND, UNITED STATES ATTORNEY GENERAL,
Respondent.
_____________________________________
Before: RAGGI, BIANCO, and MERRIAM, Circuit Judges.
Petitioner Gorakh Nauth Singh seeks review of an August 12, 2019 decision
of the Board of Immigration Appeals, affirming a January 23, 2018 decision of an
∗ This opinion was originally decided by summary order. See Singh v. Garland, No. 19-
2910, 2022 WL 16954695, at *1 (2d Cir. Nov. 16, 2022). It is now published as a per
curiam opinion in response to the government’s motion seeking publication of the
summary order, which we now grant over the objection of Singh. No substantive
change has been made to the order.
immigration judge ordering Singh’s removal based on a prior aggravated felony
conviction. In re Gorakh Nauth Singh, No. A034 607 552 (B.I.A. Aug. 12, 2019), aff’g
No. A034 607 552 (Immig. Ct. N.Y.C. Jan. 23, 2018). This petition presents the
question of whether Singh’s conviction for attempted first-degree assault in
violation of New York Penal Law §§ 110.00, 120.10(1) is a crime of violence under
18 U.S.C. § 16(a). We conclude that it is, and, accordingly, DENY the petition for
review.
H. Raymond Fasano, Esq., Youman,
Madeo & Fasano, LLP, New York,
NY, for Petitioner.
Ethan P. Davis, Acting Assistant
Attorney General, Civil Division;
Anthony P. Nicastro, Assistant
Director, Office of Immigration
Litigation; Jenny C. Lee, Trial
Attorney, Office of Immigration
Litigation, United States Department
of Justice, Washington, DC., for
Respondent.
PER CURIAM:
Petitioner Gorakh Nauth Singh, a native and citizen of Guyana, seeks
review of a decision of the BIA affirming a decision of an Immigration Judge (“IJ”)
ordering Singh’s removal based on a prior aggravated felony conviction. In re
Gorakh Nauth Singh, No. A034 607 552 (B.I.A. Aug. 12, 2019), aff’g No. A034 607 552
(Immig. Ct. N.Y.C. Jan. 23, 2018). We assume the parties’ familiarity with the
underlying facts and procedural history.
We have reviewed the IJ’s decision as modified and supplemented by the
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BIA. See Xue Hong Yang v. U.S. Dep’t of Just., 426 F.3d 520, 522 (2d Cir. 2005); Yan
Chen v. Gonzales, 417 F.3d 268, 271 (2d Cir. 2005). The sole issue before us is
whether Singh’s conviction for attempted first-degree assault in violation of New
York Penal Law (“NYPL”) §§ 110.00, 120.10(1) is a crime of violence under 8 U.S.C.
§ 1101(a)(43)(F). We review this question of law de novo. See Pierre v. Holder, 588
F.3d 767, 772 (2d Cir. 2009).
The Immigration and Nationality Act includes in the definition of
aggravated felony “a crime of violence . . . for which the term of imprisonment [is]
at least one year,” 8 U.S.C. § 1101(a)(43)(F), as well as an attempt to commit an
aggravated felony, id. § 1101(a)(43)(U). Section 1101(a)(43)(F) defines a crime of
violence by reference to 18 U.S.C. § 16, which in turn defines a “crime of violence”
as “an offense that has as an element the use, attempted use, or threatened use of
physical force against the person or property of another.” 18 U.S.C. § 16(a). The
“use of physical force” refers to intentional, rather than accidental, force and
“suggests a category of violent, active crimes.” Leocal v. Ashcroft, 543 U.S. 1, 11
(2004); 1 see also Johnson v. United States, 559 U.S. 133, 140 (2010) (holding that 18
1 See United States v. Scott, 990 F.3d 94, 119 (2d Cir. 2021) (en banc) (stating that Leocal’s
reference to active crimes emphasized that use of physical force “must be more than
accidental or negligent, not that it must involve the defendant’s physical movement”).
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U.S.C. § 924(e)’s nearly identical “physical force” clause “means violent force—that
is, force capable of causing physical pain or injury to another person”).
Accordingly, to constitute a crime of violence, a crime must require violent force.
To determine whether a state conviction is for a crime of violence, we apply
a categorical approach, looking to the elements of the state offense, not the facts
underlying the crime. See Morris v. Holder, 676 F.3d 309, 314 (2d Cir. 2012). We
“‘presume that the conviction rested upon nothing more than the least of the acts
criminalized’ under the state statute.” Mellouli v. Lynch, 575 U.S. 798, 805 (2015)
(quoting Moncrieffe v. Holder, 569 U.S. 184, 190-91 (2013)).
Because NYPL § 120.10 has multiple, divisible subsections, we apply the
modified categorical approach. See Singh v. Barr, 939 F.3d 457, 462 (2d Cir. 2019).
Here, Singh’s indictment tracks the language of NYPL § 120.10(1), and so we must
consider whether that subsection’s elements are a categorical match to the
definition in 18 U.S.C. § 16(a).
Under NYPL § 120.10(1), a “person is guilty of assault in the first degree
when . . . [w]ith intent to cause serious physical injury to another person, he causes
such injury to such person or to a third person by means of a deadly weapon or a
dangerous instrument.” The elements of this statute are either indistinguishable
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from or require a greater showing of force than sub-sections (1) and (2) of New
York’s second-degree assault statute, NYPL § 120.05, which we have previously
ruled constitute crimes of violence under Section 16(a). See Thompson v. Garland,
994 F.3d 109, 111–12 (2d Cir. 2021) (discussing NYPL § 120.05(1)); Singh, 939 F.3d
at 462–64 (discussing NYPL § 120.05(2)). 2 Because NYPL § 120.10(1) contains the
same intent and serious physical injury elements as NYPL § 120.05(1), and requires
the same showing of intent to cause physical injury and use of a deadly weapon
or dangerous instrument as NYPL § 120.05(2), NYPL § 120.10(1) is also a crime of
violence under Section 16(a)’s definition, and, therefore, an attempt to violate
NYPL § 120.10(1) is an aggravated felony under § 1101(a)(43)(F), (U).
Singh’s argument that NYPL § 120.10(1) is not a crime of violence because
the statute does not use the words “physical force” fails because the intent to cause
serious physical injury, particularly in combination with the deadly weapon or
dangerous instrument element, necessarily encompasses the use of violent force
required under Section 16(a). See Singh, 939 F.3d at 462 (“[T]he deadly weapon or
2 Under NYPL § 120.05(1), (2), a “person is guilty of assault in the second degree when
(1) “[w]ith intent to cause serious physical injury to another person, he causes such injury
to such person or to a third person;” or (2) “[w]ith intent to cause physical injury to
another person, he causes such injury to such person or to a third person by means of a
deadly weapon or a dangerous instrument.”
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dangerous instrument element makes obvious that the statute requires the use of
violent force.”).
We have considered Singh’s remaining arguments and find them to be
without merit.
For the foregoing reasons, the petition for review is DENIED.
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