The petitioner seeks review of an order of the Board of Immigration Appeals dismissing his appeal from the immigration judge's order of removal. For the reasons stated below, the petition for review is DENIED.
On Submission: August 25, 2010
Before KATZMANN, HALL, CHIN, Circuit Judges.
In the case at hand, we decide whether a New York State conviction of one count of criminal possession of a weapon in violation of N.Y. Penal Law § 265.03(1)(b) satisfies the definition of a "crime of violence" under 18 U.S.C. § 16 such that petitioner in deportation proceedings was removable and also ineligible for cancellation of removal. We find that it does and thus deny the petition for review.
Petitioner Samuel David Brooks is a native and citizen of Jamaica who came to the United States as a lawful permanent resident in February 1996. On September 3, 2008, he pleaded guilty in a New York State court to one count of criminal possession of a weapon in the second degree in violation of N.Y. Penal Law § 265.03(1)(b). The immigration authorities subsequently charged him with removability under 8 U.S.C. § 1227(a)(2)(A)(iii), as an alien convicted of an aggravated felony, and under 8 U.S.C. § 1227(a)(2)(C), as an alien convicted of a firearms offense. Brooks's immigration proceedings were conducted at the Ulster Correctional Facility in Napanoch, New York. At the conclusion of a hearing on April 28, 2009, the immigration judge ("IJ") found that Brooks's New York State conviction qualified as an aggravated felony because it met the definition of a "crime of violence" under 18 U.S.C. § 16; that he was therefore removable; and that he was also therefore ineligible for cancellation of removal. See 8 U.S.C. § 1229b(b)(1)(C). Brooks appealed the IJ's decision to the Board of Immigration Appeals ("BIA"), arguing that he had been denied due process of law because his right to counsel had been violated and that his state conviction did not constitute a "crime of violence." The BIA concluded that Brooks had not been denied due process and affirmed the IJ's determination that he had been convicted of a crime of violence, and it therefore dismissed Brooks's appeal in a decision dated August 11, 2009. Brooks now seeks review of the BIA's decision.
We focus our attention here on the question whether a conviction for possession of a weapon in the second degree in violation of N.Y. Penal Law § 265.03(1)(b) constitutes a "crime of violence" under 18 U.S.C. § 16 and therefore is an aggravated felony triggering removal.*fn2
Under 8 U.S.C. § 1227(a)(2)(A)(iii), "[a]ny alien who is convicted of an aggravated felony at any time after admission is deportable." An "aggravated felony," as defined in § 101(a)(43) of the Immigration and Nationality Act ("INA"), includes "a crime of violence (as defined in section 16 of Title 18 . . . ) for which the term of imprisonment [is] at least one year." 8 U.S.C. § 1101(a)(43)(F). Section 16 of Title 18 of the United States Code, in turn, provides that a "crime of violence" means
(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.
To determine whether a given offense fits this definition, we "look to the elements and the nature of the offense of conviction, rather than to the particular facts relating to petitioner's crime." Leocal v. Ashcroft, 543 U.S. 1, 7 (2004). In other words, we take a "categorical" approach. See Blake v. Gonzales, 481 F.3d 152, 156 (2d Cir. 2007). Under this approach, "only the minimum criminal conduct necessary to sustain a conviction under a given statute is relevant." Id. (quoting Dalton v. Ashcroft, 257 F.3d 200, 204 (2d Cir. 2001)).
New York Penal Law § 265.03(1)(b) provides that "[a] person is guilty of criminal possession of a weapon in the second degree when . . . with intent to use the same unlawfully against another, such person . . . possesses a loaded firearm . . . ." We have previously held that "to establish criminal possession of a weapon in the second degree [under N.Y. Penal Law § 265.03], the prosecution must demonstrate, beyond a reasonable doubt, that a person: (1) possessed one of the described weapons; and (2) had intent to use such weapon unlawfully against another." United States v. Gamez, 577 F.3d 394, 398 (2d Cir. 2009) (per curiam). The question presented here is whether this offense "involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense."
This is a question of first impression in this Circuit. The Third Circuit, however, has *fn3 addressed it and answered in the affirmative. See Henry v. Bureau of Immigration & Customs Enforcement, 493 F.3d 303 (3d Cir. 2007). Below, the BIA similarly concluded that Brooks's state crime conviction constitutes an aggravated felony. In re Samuel David Brooks, No. A044 859 042 (B.I.A. Aug. 11, 2009). We review the BIA's determination de novo. Blake, 481 F.3d at 156; see also Sutherland v. Reno, 228 F.3d 171, 174 (2d Cir. 2000) ("In contrast to situations where a federal agency is interpreting a statute it is charged with administering, courts owe no deference to an ...