The opinion of the court was delivered by: Jed S. Rakoff, United States District Judge.
On June 24, 2002, the Honorable Debra Freeman, United States Magistrate
Judge, issued a thorough Report and Recommendation ("Report") in the
above-captioned matter recommending that the petition for a writ of
habeas corpus filed by the pro se petitioner, Karan Persaud, be
dismissed. Thereafter, petitioner filed objections to the Report, to
which respondent replied. Accordingly, the Court has reviewed the
petition de novo. See Fed.R.Civ.P. 72(b).
The pertinent facts are set forth in the Report at 2-5. Petitioner, a
native and citizen of Guyana, entered the United States as a lawful
permanent resident on December 27, 1983. On July 28, 1999, petitioner was
sentenced in New York state court to five years imprisonment on his
guilty plea to a charge of assault in the second degree, a violation of
Section 120.05 of the New York Penal Law ("NYPL"). On November 29, 1999,
the Immigration and Naturalization Service ("INS") commenced removal
proceedings against petitioner, alleging that because he had been
convicted of an "aggravated felony," he was removable pursuant to
8 U.S.C. § 1227 (a)(2)(A) (iii) ("Any alien who is convicted of an
aggravated felony at any time after admission is deportable.").
Subsequently, an INS judge, having determined, inter alia, that
petitioner's conviction for assault in the second degree was a conviction
for an "aggravated felony" as defined in 8 U.S.C. § 1101 (a) (43)
(F), ordered him deported. Petitioner unsuccessfully challenged this
determination with the Board of Immigration Appeals ("BIA"), following
which he filed the instant petition. Although he raises several grounds
for granting the petition, the only one of even arguable merit is his
contention that he was not convicted of an "aggravated felony."
Specifically, as shown by the judgment of conviction that is part of
the record here, the crime of which petitioner was convicted was charged
under subsection 6 of NYPL § 120.05, which provides in pertinent part
that a person is guilty of assault in the second degree when "[i]n the
course of and in furtherance of the commission or attempted commission of
a felony . . . or of immediate flight therefrom, he, or another
participant if there be any, causes physical injury to a person other than
one of the participants." To determine whether this constitutes an
"aggravated felony" for purposes of 8 U.S.C. § 1101 (a) (43) (F), one
must in turn determine whether it is "a crime of violence . . . as
defined in section 16 of Title 18. . . ." 8 U.S.C. § 1101 (a) (43)
(F). Section 16 of Title 18 of the United States Code, in turn, defines
"crime of violence" as:
(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 (emphases added).
Judge Freeman correctly determined that a conviction under NYPL §
120.05(6) is not a "crime of violence" under 18 U.S.C. § 16 (a),
because a conviction under NYPL § 120.05(6), while requiring proof of
physical injury, does not require, as an element of the offense, that the
defendant use physical force to inflict that injury. See Report at 16.
For example, as the statutory language suggests, a common violation of
NYPL § 120.05(6) occurs when a police officer falls and injures
himself while pursuing a fleeing felon.
Judge Freeman nevertheless found that a conviction under NYPL §
120.05(6) constitutes a conviction for a "crime of violence" under the
alternative definition provided in 18 U.S.C. § 16 (b), i.e., an
offense that "by its nature" involves a "substantial risk" that physical
force "may be used in the course of committing the offense." See Report
at 19. This conclusion, however, appears inconsistent with the Court of
Appeals' decision in Dalton v. Ashcroft, 257 F.3d 200 (2d Cir. 2001)
Dalton construed the "by its nature" language of subsection (b), quoted
above, to mean that in determining whether a state crime constitutes a
"crime of violence" under 18 U.S.C. § 16 (b), courts must apply a
"categorical" analysis, focusing on "the intrinsic nature of the offense
rather than on the factual circumstances surrounding any particular
violation." Dalton, 257 F.3d at 204 (citing United States v.
Velazquez-Overa, 100 F.3d 418, 420-21 (5th Cir. 1996); United States v.
Aragon, 983 F.2d 1306, 1312 (4th Cir. 1993); United States v. Rodriguez,
979 F.2d 138, 140-41 (8th Cir. 1992)). Moreover, only the minimum
criminal conduct necessary to sustain a conviction under a given statute
is relevant[.] Dalton, 257 F.3d at 204. As the foregoing common example
of a policeman injured while pursuing a fleeing felon illustrates, the
minimum criminal conduct necessary to sustain a conviction under NYPL
§ 120.05(6) need not be conduct that by its nature presents a
substantial risk that physical force may be used by the defendant.
Therefore, a conviction under NYPL § 120.05(6) does not constitute a
conviction of an "aggravated felony" under 8 U.S.C. § 1101 (a) (43)
(F) and 8 U.S.C. § 1227 (a)(2)(A) (iii).
Accordingly, the petition is granted and the case remanded to the INS
for further proceedings consistent with this Memorandum Order. Clerk to
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