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Connell Stanley Morris v. Eric H. Holder

April 23, 2012

CONNELL STANLEY MORRIS,
PETITIONER,
v.
ERIC H. HOLDER, JR., ATTORNEY GENERAL OF THE UNITED STATES,
RESPONDENT.



The opinion of the court was delivered by: Livingston, Circuit Judge:

10-4687-ag

Morris v. Holder

Submitted: September 26, 2011

Before: WALKER, MCLAUGHLIN, and LIVINGSTON, Circuit Judges.

Petition for review of a decision of the Board of Immigration Appeals ("BIA") affirming an order of an Immigration Judge finding petitioner Connell Stanley Morris removable on the basis of his second-degree assault conviction in violation of New York Penal Law § 120.05(2) and on the basis of petitioner's conviction of attempted criminal possession of a controlled substance in the seventh degree in violation of New York Penal Law §§ 110 and 220.03. The BIA found Morris ineligible for cancellation of removal because his second-degree assault conviction constituted a "crime of violence" under 18 U.S.C. § 16(b) and therefore an "aggravated felony" for purposes of § 101(a)(43)(F) of the Immigration and Nationality Act ("INA"), 8 U.S.C. § 1101(a)(43)(F). We hold that a conviction for second-degree assault under New York Penal Law § 120.05(2) categorically constitutes a "crime of violence" for the purposes of 18 U.S.C. § 16(b). We further conclude that the Supreme Court's decision in Padilla v. Kentucky, 130 S. Ct. 1473 (2010), did not overturn our precedent holding that the Ex Post Facto Clause of the United States Constitution, U.S. CONST. art. I, § 9, cl. 3, is not applicable in the deportation and removal context. We dismiss the petition for review.

This appeal requires us to determine whether a conviction for second- degree assault pursuant to New York Penal Law § 120.05(2) is a "crime of violence" under 18 U.S.C. § 16(b) and therefore an "aggravated felony" for purposes of § 101(a)(43)(F) of the Immigration and Nationality Act ("INA"), 8 U.S.C. § 1101(a)(43)(F). We are also asked to determine whether the Supreme Court's decision in Padilla v. Kentucky, 130 S. Ct. 1473 (2010), overturned the "long and constant line of precedent establish[ing] that statutes retroactively setting criteria for deportation do not violate the ex post facto clause" of the United States Constitution because "[d]eportation is a civil, not a criminal, proceeding." Kuhali v. Reno, 266 F.3d 93, 111-12 (2d Cir. 2001).

Petitioner Connell Stanley Morris, a native and citizen of Saint Vincent and the Grenadines admitted to the United States as a lawful permanent resident, was convicted of assault in the second degree pursuant to New York Penal Law § 120.05(2) and of attempted criminal possession of a controlled substance in the seventh degree in violation of New York Penal Law §§ 110 and 220.03. By order of October 19, 2010, and based on Morris's assault conviction, the Board of Immigration Appeals ("BIA") upheld the November 20, 2009 oral decision of the Immigration Judge ("IJ") ordering Morris removed from the United States as an alien convicted of an "aggravated felony."

Morris raises two arguments in his petition. First, he contends that the BIA erred in holding that his New York State conviction for second-degree assault constitutes a "crime of violence" pursuant to 18 U.S.C. § 16(b) and is therefore an "aggravated felony" as defined in § 101(a)(43)(F) of the INA.*fn1 Second, Morris contends that Padilla v. Kentucky, 130 S. Ct. 1473 (2010), overturns the substantial body of precedent holding that deportation and removal proceedings are civil in nature and thus do not implicate the Ex Post Facto Clause. As a result, he argues that the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 ("IIRIRA"), Pub. L. No. 104-208, div. C, 110 Stat. 3009-546, which expanded the INA's definition of "aggravated felony" to include "a crime of violence" (as defined in 8 U.S.C. § 16) that results in a prison sentence of one year or more, see 8 U.S.C. § 1101(a)(43)(F) (as added by IIRIRA § 321, 110 Stat. at 3009-627), should not apply retroactively to his 1993 assault conviction.

For the reasons stated below, we reject each of these contentions. We conclude that second-degree assault under New York Penal Law § 120.05(2) does constitute a "crime of violence" within the meaning of 18 U.S.C. § 16(b) and an "aggravated felony" under 8 U.S.C. § 1101(a)(43)(F). We further conclude that the decision in Padilla does not alter longstanding precedent holding that deportation is a civil proceeding and that, as a result, statutes retroactively setting criteria for deportation do not implicate the Ex Post Facto Clause.

With these questions decided, we lack jurisdiction to further review the order of removal in this case. Accordingly, we dismiss Morris's petition for review.

BACKGROUND

Morris, a native and citizen of Saint Vincent and the Grenadines, was admitted to the United States as a lawful permanent resident on August 17, 1980. On July 9, 1993, Morris pleaded guilty in New York State to a charge of assault in the second degree in violation of New York Penal Law § 120.05(2); he was sentenced to five years' probation on August 23, 1993. Morris was found to be in violation of his probation on August 25, 1994, and was resentenced to a term of one year of imprisonment on September 14, 1994.

On September 20, 2001, Morris pleaded guilty for a second time in New York State, this time to the offense of attempted criminal possession of a controlled substance in the seventh degree in violation of New York Penal Law §§ 110 and 220.03. Morris was sentenced to one year of probation for this offense.

On July 30, 2008, the Department of Homeland Security ("DHS") instituted removal proceedings against Morris on the ground that his 1993 New York State conviction for second-degree assault rendered him an aggravated felon, and on the additional ground that he had been convicted of a controlled substance violation. See 8 U.S.C. § 1227(a)(2)(A)(iii), (B)(i). At a hearing before an IJ on November 20, 2009, Morris, who was represented by counsel, admitted his second-degree assault conviction but challenged removability on the basis that his conviction for second-degree assault should not be considered a "crime of violence" within the meaning of 18 U.S.C. § 16(b). Morris further contended that he was entitled to a waiver of inadmissability under ...


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