Santana v. Holder , 714 F.3d 140 ( 2013 )

10-2307-ag
Santana v. Holder
U NITED S TATES C OURT OF A PPEALS
FOR THE S ECOND C IRCUIT
________________________
August Term 2012
(Submitted: February 21, 2013 Decided: April 22, 2013)
Docket No. 10-2307-ag
________________________
C ESAR M ANUEL G OMEZ S ANTANA , AKA C ESAR M. G OMEZ , AKA M ANNEL G OMEZ ,
Petitioner,
v.
E RIC H. H OLDER , J R ., U NITED S TATES A TTORNEY G ENERAL ,
Respondent.
________________________
Before:
C HIN and D RONEY , Circuit Judges, and R ESTANI , Judge. *
________________________
Petition for review of an order of the Board of
Immigration Appeals, affirming the decision of an
Immigration Judge finding petitioner removable and
*
The Honorable Jane A. Restani, of the United States
Court of International Trade, sitting by designation.
ineligible for cancellation of removal on the basis that a
conviction for attempted arson in the second degree under
New York law is an "aggravated felony."
DISMISSED.
____________________________
Cesar Manuel Gomez Santana, pro se,
Macclenny, Florida.
Holly M. Smith, Luis E. Perez, Senior
Litigation Counsels, Office of
Immigration Litigation, Tony
West, Assistant Attorney
General, Civil Division, United
States Department of Justice,
Washington, District of
Columbia, for Respondent.
____________________________
CHIN, Circuit Judge:
Petitioner Cesar Manuel Gomez Santana was convicted
in state court of attempted arson in the second degree in
violation of New York law. In this case -- a petition for
review of an order of the Board of Immigration Appeals
("BIA") affirming a decision of an Immigration Judge finding
Santana removable and ineligible for cancellation of removal
-- the question is whether attempted arson in the second
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degree is a "crime of violence" and therefore an "aggravated
felony." We hold that it is, and, accordingly, we dismiss
the petition for review.
STATEMENT OF THE CASE
A. The Facts
The facts are undisputed. Santana, a native and
citizen of the Dominican Republic, entered the United States
as a lawful permanent resident on October 4, 1968. In 1991,
Santana was convicted, pursuant to a guilty plea, in the
Supreme Court of the State of New York, New York County, of
attempted arson in the second degree, in violation of New
York Penal Law ("NYPL") §§ 150.15 and 110.00, and sentenced
to a term of imprisonment of eighteen to fifty-four months.
In 1999, Santana pled guilty in the Criminal Court of the
City of New York, New York County, to criminal possession of
a controlled substance (cocaine) in the seventh degree, in
violation of NYPL § 220.03, and sentenced to a term of
imprisonment of time served.
In January 2007, Santana visited family in the
Dominican Republic. When he returned to the United States
on February 16, 2007 and applied for admission as a
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returning lawful permanent resident, officers of the
Department of Homeland Security determined that he was
inadmissible to the United States by reason of his
convictions.
B. Proceedings Below
The Department of Homeland Security initiated
removal proceedings by serving Santana, on January 18, 2008,
with a Notice to Appear. The Notice to Appear charged
Santana with removability as an alien who had been convicted
of: (1) a crime of moral turpitude under
§ 212(a)(2)(A)(i)(I) of the Immigration and Nationality Act
("INA") (attempted arson), and (2) a crime relating to a
controlled substance under INA § 212(a)(2)(A)(i)(II)
(possession of a controlled substance).
On December 3, 2008, Immigration Judge Noel Brennan
found Santana removable based on the controlled substance
conviction. On August 25, 2009, Immigration Judge Alan Page
(the "IJ") found Santana removable based on the attempted
arson conviction. Santana applied for cancellation of
removal. By decision dated January 6, 2010, the IJ denied
Santana's application for cancellation of removal based on
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the arson conviction, concluding that attempted arson in the
second degree is an "aggravated felony" as defined in the
INA, rendering Santana statutorily ineligible for
cancellation of removal. See INA § 240A(a). Accordingly,
the IJ ordered Santana deported to the Dominican Republic.
Santana appealed the IJ's decision to the BIA,
arguing that attempted arson in the second degree under New
York law is not an "aggravated felony" constituting a "crime
of violence." By order dated May 19, 2010, the BI A agreed
with the IJ's conclusion that Santana's conviction for
attempted arson in the second degree was an "aggravated
felony," and dismissed the appeal.
Santana petitioned this Court for review of the
BIA's order, and moved for a stay of removal pending the
appeal. We denied the motion for a stay and dismissed the
appeal except to the extent that Santana raised a question
of law regarding whether his conviction for attempted arson
in the second degree constituted an "aggravated felony." We
now address the issue.
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DISCUSSION
A. Applicable Law
Although we lack jurisdiction to review final
orders of removal against aliens convicted of an "aggravated
felony," we have jurisdiction to review constitutional
claims or questions of law, including whether a specif ic
offense constitutes an "aggravated felony." See INA
§ 242(a)(2)(C)-(D); Blake v. Gonzales, 481 F.3d 152, 155-56
(2d Cir. 2007). Here, if Santana's conviction under NYPL
§§ 150.15 and 110.00 is an "aggravated felony," we must
dismiss the petition for lack of jurisdiction. Higgins v.
Holder, 677 F.3d 97, 100 (2d Cir. 2012).
While this Court gives substantial deference to the
BIA's interpretation of the INA, a statute it is charged
with administering, we review de novo its interpretation of
state and federal criminal laws. See Dickson v. Ashcroft,
346 F.3d 44, 48 (2d Cir. 2003). Because this petition for
review involves the interpretation of 18 U.S.C. § 16 and
NYPL §§ 150.15, 110.00, our review is de novo.
The INA provides that "any alien convicted of . . .
a crime involving moral turpitude . . . or an attempt . . .
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to commit such a crime" is inadmissible to the United
States. INA § 212(a)(2)(A)(i)(I). The Attorney General may
cancel removal of an inadmissible alien in certain
circumstances if the alien "has not been convicted of an
aggravated felony." Id. § 240A(a).
INA § 101(a)(43)(F) defines an "aggravated felony"
to include "a crime of violence (as defined in s ection 16 of
Title 18 . . .) for which the term of imprisonment [is] at
least one year." An attempt to commit a "crime of violence"
is also an "aggravated felony." Id. § 101(a)(43)(U).
Section 16 of Title 18 of the United States Code
defines a "crime of violence" as:
(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.
18 U.S.C. § 16. While § 16 uses the phrase "substantial
risk" that physical force may be used, we have held that the
use of physical force must be intentional. See Vargas-
Sarmiento v. U.S. Dep't of Justice, 448 F.3d 159, 169-70 (2d
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Cir. 2006) (use of physical force contemplated by § 16
"refers to an intentional, rather than merely negligent or
accidental, use of force"); Dalton v. Ashcroft, 257 F.3d
200, 208 (2d Cir. 2001) (§ 16(b) "refers only to those
offenses in which there is a substantial likelihood that the
perpetrator will intentionally employ physical force"
(internal quotation marks omitted)).
We use a "categorical approach" to determine
whether an offense is a "crime of violence" within the
meaning of 18 U.S.C. § 16. Vargas-Sarmiento, 448 F.3d at
166 (citation omitted). We "focus[] on the intrinsic nature
of the offense . . . . [T]he singular circumstances of an
individual petitioner's crimes should not be considered, and
only the minimum criminal conduct necessary to sustain a
conviction under a given statute is relevant." Dalton, 257
F.3d at 204 (internal quotation marks omitted).
Under NYPL § 150.15, the elements of arson in the
second degree are: (1) the defendant starts a fire, (2)
with intent to damage a building; (3) he damages the
building, (4) while another person is present in the
building; and (5) he knows or should know that the presence
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of such a person in the building is a reasonable
possibility. Payne v. Jones, 638 F. Supp. 669, 673
(E.D.N.Y. 1986), aff'd, 812 F.2d 712 (2d Cir. 1987)
(unpublished order). 1 NYPL § 110.00 criminalizes attempts
to commit a crime.
Attempted arson in the second degree is a class C
felony, see N.Y. Penal Law §§ 110.05, 150.15, punishable by
a term of imprisonment of not less than one year but not
more than fifteen years, see id. § 70.00. "An offense is
classified by federal law as a felony if 'the maximum term
of imprisonment authorized' is more than one year." Blake,
481 F.3d at 160 (quoting 18 U.S.C. § 3559(a)).
B. Application
Santana does not challenge the BIA's determination
that he is removable as an inadmissible alien. Santana
1
New York Penal Law ("NYPL") § 150.15 provides:
A person is guilty of arson in the second degree
when he intentionally damages a building or motor
vehicle by starting a fire, and when (a) another
person who is not a participant in the crime is
present in such building or motor vehicle at the
time, and (b) the defendant knows that fact or
the circumstances are such as to render the
presence of such a person therein a reasonable
possibility.
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argues only that the BIA erred in holding that he was
ineligible for cancellation of removal because arson is a
"crime of violence," and, thus, an "aggravated felony."
The parties agree that only subsection (b) of 18
U.S.C. § 16 is at issue in this case. As there is no
dispute that attempted arson in the second degree is a
felony, the question before the Court is whether the
offense, by its nature, involves a substantial risk of the
intentional use of physical force against the person or
property of another. See Blake, 481 F.3d at 156; Vargas-
Sarmiento, 448 F.3d at 160-70.
While we have not previously considered this issue,
other circuits, considering other state laws, have held that
arson is a "crime of violence." See, e.g., United States v.
Velez-Alderete, 569 F.3d 541, 546 (5th Cir. 2009) (per
curiam) (Texas law); Mbea v. Gonzales, 482 F.3d 276, 280
(4th Cir. 2007) (District of Columbia law); United States v.
Velasquez-Reyes, 427 F.3d 1227, 1231 (9th Cir. 2005)
(Washington law); United States v. Schwartz, 235 F. App'x
914, 916-17 (3d Cir. 2007) (unpublished decision)
(Pennsylvania law); United States v. Adams, 51 F. App'x 507,
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508 (6th Cir. 2002) (unpublished decision) (Kentucky law).
We reach a similar conclusion in this case with respect to
the New York statute.
First, fire is a physical force. As the NYPL does
not define "physical force," we supply the words with their
ordinary meaning. See United States v. Desposito, 704 F.3d
221, 226 (2d Cir. 2013). "Force" is defined broadly as
"power, violence, or pressure directed against a person or
thing." Dickson, 346 F.3d at 50 (quoting Chrzanoski v.
Ashcroft, 327 F.3d 188, 192 (2d Cir. 2003); Black's Law
Dictionary 656 (7th ed. 1999)). "Physical force" has also
been defined as "an influence acting within the physical
world, a force of nature." Mbea, 482 F.3d at 280 (quotation
omitted). "Fire is nothing if not a force of nature that
exerts an influence within the physical world." Id.(internal quotation marks omitted). Fire is physical force
in the sense that it can impose "physical barriers of
forcible restraint." Dickson, 346 F.3d at 49. Fire also
has the power to destroy buildings or injure people. See In
re Palacios-Pinera, 22 I. & N. Dec. 434, 437 (BIA 1998).
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Second, attempted arson in the second degree
involves the intentional use of fire. A person is guilty of
arson in the second degree when he "intentionally damages a
building or motor vehicle by starting a fire." N.Y. Penal
Law § 150.15 (emphasis added). The intentional use of
physical force requires "active employment" of the force,
Leocal v. Ashcroft, 543 U.S. 1, 9 (2004), and there can be
no doubt that starting a fire with the intent to damage a
building involves the "active employment" of fire in
committing the offense.
Third, attempted arson in the second degree
involves a substantial risk that fire may be used against
the person or property of another. NYPL § 150.15 requires
that, at the time the defendant started a fire with the
intent to damage a building, a person other than a
participant in the crime was present in the building, and
that the defendant knew or should have known that fact. See
N.Y. Penal Law § 150.15; Payne, 638 F. Supp. at 673. Thus,
the offense will always involve a substantial risk that fire
may be used against another, i.e., the person other than the
defendant who is in the building at the time of the fire.
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The fact that the other person is not actually injured is
irrelevant, as § 16(b) "covers offenses that naturally
involve a person acting in disregard of the risk tha t
physical force might be used against another in committing
an offense[;] . . . physical force need not actually be
applied." Leocal, 543 U.S. at 10-11.
Santana argues that NYPL § 150.15 does not
necessarily involve the use of fire against the "property of
another," as arson in the second degree may be committed by
a person setting fire to property he owns himself. See
Shepherd v. People, 19 N.Y. 537, 542 (1859); People v.
Rosen, 297 N.Y.S. 877, 880 (3d Dep't 1937). Damage to
property of another, however, is not required for purposes
of § 16(b). Because NYPL § 150.15 always requires the
presence of someone in the building, that presence creates a
substantial risk in every case that physical force may be
used against another. That the building is owned by the
defendant does not alleviate the danger that fire will
injure the persons inside or spread to nearby buildings.
See, e.g., Salim v. Reno, No. CIV. A. 2000-CV-4603, 2000 WL
33115910, at *2 (E.D. Pa. Jan. 16, 2001) (unpublished
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decision) ("It matters little whether the property set
ablaze belongs to the arsonist or another. Fires spread,
endangering not only the arsonist's direct target but also
nearby persons and property," as well as firefighters and
emergency workers.); In re Palacios-Pinera, 22 I. & N. Dec.
at 437 (starting fire always involves risk that fire will
spread beyond originally intended property to another that
may be occupied by other persons).
Arson has been characterized in other contexts as
involving "purposeful, violent, and aggressive conduct."
Chambers v. United States, 555 U.S. 122, 128 (2009) (quoting
Begay v. United States, 553 U.S. 137, 144-45 (2008))
(internal quotation marks omitted). The United States
Sentencing Guidelines enumerates arson as a "crime of
violence" warranting enhanced penalties. See U.S.
Sentencing Guidelines Manual §§ 2L1.2(b)(1) cmt.
n.1(B)(iii), 4B1.2(a)(2) (2012). Fire is a powerful weapon
-- easy to wield, capable of overwhelming destruction, and
difficult if not impossible to control. It would defy
common sense to characterize arson as anything but a violent
crime.
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Accordingly, we hold that attempted arson in the
second degree under New York law is a felony that, by its
nature, involves a substantial risk of the intentional use
of physical force against the person or property of another.
Hence, attempted arson in the second degree is a "crime of
violence" under 18 U.S.C. § 16(b), and an "aggravated
felony" under INA § 101(a)(43)(F), (U). Therefore, we lack
jurisdiction over Santana's petition for review.
CONCLUSION
For the foregoing reasons, Santana's petition for
review is DISMISSED.
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