Lanferman v. BIA (2d Cir. 08/05/09, no. 06-3432-ag)
Kearse, Straub, Pooler (Per Curiam)
The 2d Circuit granted this petition for review, finding itself bound by its decision in James v. Mukasey to remand to the BIA to decide whether section 120.14 of New York Penal Law, menacing in the second degree, is divisible under the modified categorical approach such that Petitioner is removable for having been convicted of a firearms offense. The court also referred to the Supreme Court’s decision in Nijhawan but declined to apply it, finding that the Supreme Court’s analysis there did not change the divisibility analysis here or the validity of the categorical approach in general. Circuit Judge Kearse dissented.
LPR Petitioner was convicted of menacing in the second degree under NYPL § 120.14, after allegedly threatening his wife with a loaded revolver. DHS placed him in removal proceedings and charged him with removability under INA § 237(a)(2)(C). Petitioner sought both termination and cancellation of removal – the IJ denied both, applying the modified categorical approach to find Petitioner removable due to a firearms conviction. The BIA affirmed, referring specifically to the record of conviction as had the IJ.
The 2d Circuit first dismissed Petitioner’s argument that his guilty plea was obtained in violation of certain constitutional rights, finding this a collateral attack not reviewable by the court. The court then addressed Petitioner’s second claim, that the government had not established conviction of a firearm offense by clear and convincing evidence. The court, in light of its decision in James v. Mukasey (see blog entry), deemed it wiser to remand to the BIA to decide divisibility of the statute and whether Petitioner was removable for a firearms offense. However, the court commented briefly on each of the 3 approaches the 2d Circuit might adopt.
The court also noted in two separate footnotes that the Supreme Court’s decision in Nijhawan does not change the divisibility analysis here, or the validity of the categorical approach in general, as that case related to crimes for which the particular circumstances had to be determined (e.g., whether loss to victim was over $10k) and not to generic crimes as here.
Circuit Judge Kearse dissented, arguing that the court ought to have decided that the statute was divisible and Petitioner removable rather than remanding to the BIA to guess which approach re: divisibility the court might adopt. Judge Kearse also disagreed with the majority that James required remand, distinguishing that case as requiring an interpretation of a key term – sexual abuse – whereas here there is no problem with defining a revolver as a firearm.
Atty for Petitioner: Adam Paskoff, Paskoff & Tamber, LLP, New York, NY