15

‐ 1875

Richards v. Sessions

BIA

Sagerman, IJ

A042 854 612

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

TO 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 1

at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New 2

York, on the 15 th day of March, two thousand seventeen. 3

4

PRESENT: ROBERT D. SACK, 5

RAYMOND J. LOHIER, JR., 6

Circuit Judges, 7

PAUL A. CROTTY,  8

District Judge. 9

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RICARDO ANDRE RICHARDS, 11

12

Petitioner

, 13

14

v. 15

‐ 1875 15

16

JEFFERSON B. SESSIONS, III, 17

UNITED STATES ATTORNEY 18

GENERAL, 19

20

 Judge Paul A. Crotty, of the United States District Court for the Southern District of New York, sitting by

designation.2 Respondent

. 1

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3

FOR PETITIONER: L EON B. H AZANY

, Los Angeles, CA. 4

5

FOR RESPONDENT: J ANETTE L. A LLEN

, Senior Litigation 6

Counsel, Office of Immigration 7

Litigation (Benjamin C. Mizer, Principal 8

Deputy Assistant Attorney General, 9

Anthony C. Payne, Assistant Director, 10

Office of Immigration Litigation, on the 11

brief ), United States Department of 12

Justice, Washington, D.C. 13

14

UPON DUE CONSIDERATION of this petition for review of a Board of 15

Immigration Appeals (“BIA”) decision, it is ORDERED, ADJUDGED, AND 16

DECREED that the petition for review is DENIED. 17

Petitioner Ricardo Andre Richards, a native and citizen of Jamaica, seeks 18

review of a June 3, 2015 decision of the BIA, affirming a February 26, 2015 19

decision of an Immigration Judge (“IJ”) ordering Richards removed to Jamaica. 20

In re Ricardo Andre Richards, No. A042 854 612 (B.I.A. June 3, 2015), aff’g No. 21

A042 854 612 (Immig. Ct. Napanoch, N.Y. Feb. 26, 2015). We assume the parties’ 22

familiarity with the facts and record of the prior proceedings, to which we refer 23

only as necessary to explain our decision to deny the petition. 24

On appeal, Richards challenges the BIA’s holding that he was convicted for 25

two New York offenses that constitute crimes involving moral turpitude 263 (“CIMTs”). See 8 U.S.C. § 1227(a)(2)(A)(ii). We defer to the BIA’s reasonable 1

interpretations of the meaning of “moral turpitude” and review de novo the BIA’s 2

interpretation of the elements of New York’s criminal laws. Gill v. INS, 420 F.3d 3

82, 89 (2d Cir. 2005). 4

Richards first argues that third

‐ degree assault, N.Y. Penal Law § 120.00(1), 5

is categorically not a CIMT because a conviction can result from a “minor” injury 6

caused by a “slight” amount of force. But § 120.00(1) requires a specific intent to 7

cause “physical injury” that is more than a mere technical battery. See N.Y. 8

Penal Law § 10.00(9); People v. Henderson, 92 N.Y.2d 677, 680 (1999); Matter of 9

Philip A., 49 N.Y.2d 198, 200 (1980). We therefore defer to the BIA’s reasonable 10

view that a conviction under § 120.00(1), requiring proof of an intentional assault 11

meant to cause more than de minimis physical harm, constitutes a CIMT. See 12

Matter of Solon, 24 I. & N. Dec. 239, 245 (B.I.A. 2007). 13

Richards next argues that second

‐ degree menacing, N.Y. Penal Law 14

§ 120.14(1), is categorically not a CIMT. 1 Here again, we defer to the BIA’s 15

contrary conclusion. Richards’ argument that second

‐ degree menacing is a 16

1 Richards has abandoned any challenge to the BIA’s conclusion that New York

Penal Law §§ 120.14(2) and (3) are CIMTs. Yueqing Zhang v. Gonzales, 426 F.3d

540, 545 n.7 (2d Cir. 2005); see also Gross v. Rell, 585 F.3d 72, 95 (2d Cir. 2009).4 general intent crime misreads the statute, which requires “intentionally plac[ing] 1

or attempt[ing] to place another person in reasonable fear of physical injury

. . . .” 2

N.Y. Penal Law § 120.14(1). New York courts construe this language to require a 3

specific intent to cause fear of injury. See People v. Bartkow, 96 N.Y.2d 770, 772 4

(2001); People v. Bryant, 787 N.Y.S.2d 540, 541–42 (4th Dep’t 2004). Richards 5

further argues that § 120.14(1) cannot categorically be a CIMT because the use of 6

an object that only appears to be a firearm is not a sufficient aggravating factor. 7

The BIA disagreed, noting that § 120.14(1) requires a specific intent to make the 8

victim fear physical harm from the use of a deadly weapon, whether or not the 9

displayed weapon is real. Because New York courts require that the defendant 10

display an object that could reasonably be perceived as a real firearm, see People 11

v. Lopez, 73 N.Y.2d 214, 220 (1989); People v. Colon, 984 N.Y.S.2d 438, 440–41, 443 12

(3d Dep’t 2014), the BIA’s conclusion—that use of a fake firearm constitutes a 13

sufficient aggravating factor—is permissible and therefore deserves deference, 14

see Gill, 420 F.3d at 89. 15

Finally, we reject Richards’ argument that the BIA erred in relying on 16

Matter of Silva

‐ Trevino, 24 I. & N. Dec. 687 (A.G. 2008) (“Silva

‐ Trevino I”). The 17

agency relied only on Silva

‐ Trevino I’s definition of a CIMT as “involv[ing] both 18

reprehensible conduct and some degree of scienter,” and the decision vacating 195 Silva

‐ Trevino I expressly preserved this definition. Matter of Silva

‐ Trevino, 26 I. 1

& N. Dec. 550, 553 n.3 (A.G. 2015); see also Matter of Silva

‐ Trevino, 26 I. & N. Dec. 2

826, 828 n.2 (B.I.A. 2016). 3

We have considered Richards’ remaining arguments and conclude that 4

they are without merit. For the foregoing reasons, the petition for review is 5

DENIED. 6

FOR THE COURT: 7

Catherine O’Hagan Wolfe, Clerk 8