Singh v. Garland ( 2022 )

19-2910
Singh v. Garland
BIA
Wright, IJ
A034 607 552
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER
FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF
APPELLATE PROCEDURE 32.1 AND THIS COURT=S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER
IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN
ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER
MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.
At a stated term of the United States Court of Appeals for
the Second Circuit, held at the Thurgood Marshall United States
Courthouse, 40 Foley Square, in the City of New York, on the 16th
day of November, two thousand twenty-two.
PRESENT:
REENA RAGGI,
JOSEPH F. BIANCO,
SARAH A. L. MERRIAM,
Circuit Judges.
_____________________________________
GORAKH NAUTH SINGH, AKA GORAKH N.
SINGH, AKA GURAKH SINGH, AKA
GORAKH O. SINGH, AKA GURAKA SINGH,
Petitioner,
v. 19-2910
MERRICK B. GARLAND, UNITED STATES
ATTORNEY GENERAL,
Respondent.
_____________________________________
FOR PETITIONER: H. Raymond Fasano, Esq., Youman,
Madeo & Fasano, LLP, New York, NY.
FOR RESPONDENT: 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.
UPON DUE CONSIDERATION of this petition for review of a Board
of Immigration Appeals (“BIA”) decision, it is hereby ORDERED,
ADJUDGED, AND DECREED that the petition for review is DENIED.
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 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
2
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 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
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”).
3
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 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
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.”
4
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 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.
FOR THE COURT:
Catherine O’Hagan Wolfe,
Clerk of Court
5