Lall Ramnauth v. Attorney General United States , 503 F. App'x 150 ( 2012 )

PS3-009 NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 12-1765
___________
LALL B. RAMNAUTH,
Petitioner
v.
ATTORNEY GENERAL UNITED STATES OF AMERICA
____________________________________
Petition for Review of an Order of the
Board of Immigration Appeals
(Agency No. A037-139-420)
Immigration Judge: Honorable Leo A. Finston
____________________________________
Submitted Pursuant to Third Circuit LAR 34.1(a)
November 5, 2012
Before: RENDELL, FISHER and GARTH, Circuit Judges
(Opinion filed: November 6, 2012)
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OPINION OF THE COURT
___________
PER CURIAM
Lall B. Ramnauth, a native and citizen of Guyana, was admitted to the United
States in 1983 as a lawful permanent resident. In 1995, Ramnauth was convicted of
arson in violation of N.J. Stat. Ann. § 2C:17-1(b). In 2003, he was convicted for
aggravated assault in violation of N.J. Stat. Ann. § 2C:12-1(b)(1) and possession of a
weapon other than a firearm for an unlawful purpose in violation of N.J. Stat. Ann.
§ 2C:39-4(d). The latter convictions stem from a 2002 incident in which Ramnauth
apparently struck another man in the head with a wooden board. A.R. 345, 359-62. He
was sentenced to seven years’ imprisonment for the aggravated assault conviction and a
concurrent term of four years’ imprisonment for the weapons possession conviction. In
2010, he was served with a Notice to Appear charging him with removability as an alien
convicted of an aggravated felony pursuant to 8 U.S.C. § 1227(a)(2)(A)(iii), and for
having committed two or more crimes involving moral turpitude pursuant to
§ 1227(a)(2)(A)(ii).
Ramnauth applied for asylum, withholding of removal, and protection under the
Convention Against Torture. An Immigration Judge (“IJ”) determined that he was
removable as charged and found that he was statutorily ineligible for asylum because his
conviction for possession of a weapon is an aggravated felony. 1 See 8 U.S.C.
§ 1101(a)(43)(F) (defining aggravated felony as an offense constituting a “crime of
violence” under 18 U.S.C. § 16 for which the term of imprisonment was at least one
year). The Board of Immigration Appeals (“BIA”) agreed with the IJ’s aggravated felony
1
Ramnauth has raised no challenge to the denials of withholding of removal and
protection under the Convention Against Torture; accordingly, he has waived judicial
review of these issues. See Laborers’ Int’l Union of N. Am. v. Foster Wheeler Corp., 26
F.3d 375, 398 (3d Cir. 1994) (holding that an issue is waived unless party raises it in
opening brief). In any event, Ramnauth did not raise the issues on appeal to the BIA.
Accordingly, irrespective of their waiver, they are unexhausted and beyond our
jurisdiction. See Hoxha v. Holder, 559 F.3d 157, 159 n.3 (3d Cir. 2009).
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analysis, rejected Ramnauth’s arguments, and dismissed his appeal. Ramnauth petitions
for review.
Because he is a criminal alien, this Court has jurisdiction to review Ramnauth’s
petition only to the extent he raises constitutional claims or questions of law. See 8
U.S.C. § 1252(a)(2)(C)-(D); Henry v. Bureau of Immig. & Customs Enforcement, 493
F.3d 303, 306 (3d Cir. 2007). Whether Ramnauth’s weapons possession conviction
constitutes an aggravated felony—the only issue raised before this Court—is a question
of law over which our review is plenary. See Henry, 493 F.3d at 306.
Ramnauth was charged with and convicted of violating N.J. Stat. Ann. § 2C:39-
4(d), which reads in its entirety: “Any person who has in his possession any weapon,
except a firearm, with a purpose to use it unlawfully against the person or property of
another is guilty of a crime of the third degree.” Ramnauth argues that his conviction
under § 2C:39-4(d) does not constitute an aggravated felony because a violation of that
provision is not a crime of violence as it does not necessarily involve a substantial risk
that the violator will intentionally use physical force. This argument is without merit.
Under 18 U.S.C. § 16(b), “a crime of violence” is defined as an 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.” A
conviction under § 2C:39-4(d) expressly requires not only that the defendant possess a
weapon, but that he or she intend or have “a purpose” to use it unlawfully against the
person or property of another. See e.g., State v. Villar, 696 A.2d 674, 677 (N.J. 1997)
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(affirming a conviction under § 2C:39-4(d) where defendant possessed a beer stein and
used it to strike the victim). Ramnauth’s conviction was therefore predicated on his
intent to use the weapon in his possession; accordingly, his crime involved a substantial
risk of the use of physical force against the person or property of another and, under the
settled law of this Circuit, constituted a “crime of violence.” See Henry, 493 F.3d at308–10 (explaining that “certainly if someone intends to use physical force there is a
substantial risk that physical force may be used” and concluding that “possession of a
weapon with intent to use the same unlawfully against another [under a New York
Statute] is a crime of violence within the meaning of § 16(b)”); see also Aguilar v. Att’y
Gen., 663 F.3d 692, 699 (3d Cir. 2011) (holding that offenses that “raise a substantial risk
that the perpetrator will resort to intentional physical force in the course of committing
the crime” qualify as crimes of violence under § 16(b)); cf. United States v. Hull, 456
F.3d 133, 140 (3d Cir. 2006) (holding that “mere possession of a pipe bomb holds no risk
of the intentional use of force”). In short, because Ramnauth’s offense was a crime of
violence for which he was sentenced for more than one year’s imprisonment, the BIA
correctly determined that he is an aggravated felon. 2 See 8 U.S.C. § 1101(a)(43)(F).
Ramnauth alternatively claims that the BIA erred by applying the formal
categorical approach to determine whether his conviction constituted a crime of violence.
2
Ramnauth argues that the BIA’s reliance on cases involving the possession of different
sorts of weapons was error. However, because a conviction for possession of any
weapon with the intent to use it unlawfully against another involves a substantial risk of
the intentional use of physical force, it is of no moment whether the weapon involved is a
gun, a knife, or, as here, a wooden board.
4
Although N.J. Stat. Ann. § 2C:39-4 is comprised of several subsections, Ramnauth was
specifically charged with and convicted of violating only subsection (d). See A.R. at
359-62. That provision is not divisible, and, as explained above, the only conduct it
proscribes qualifies as a crime of violence. Accordingly, the BIA did not err in applying
the formal categorical approach. See Aguilar, 663 F.3d at 695 n.6.
We have considered Ramnauth’s remaining arguments and conclude that they are
either waived or without merit. For the foregoing reasons, we will deny the petition for
review.
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