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.   

1 At a stated term of the United States Court of Appeals for the Second Circuit, held

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

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

4

5 PRESENT: ROBERT D. SACK,

6 RAYMOND J. LOHIER, JR.,

7 Circuit Judges,

PAUL A. CROTTY, 8

9 District Judge.   

10 ---------------------------------------------------------

11 RICARDO ANDRE RICHARDS,   

12

13 Petitioner,

14

15 v.    15‐1875

16    

17 JEFFERSON B. SESSIONS, III,

18 UNITED STATES ATTORNEY

19 GENERAL,

20

 

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

designation.
2 

1 Respondent.

2 ---------------------------------------------------------

3

4 FOR PETITIONER: LEON B. HAZANY, Los Angeles, CA.   

5                     

6 FOR RESPONDENT:          JANETTE L. ALLEN, Senior Litigation

7 Counsel, Office of Immigration

8 Litigation (Benjamin C. Mizer, Principal

9 Deputy Assistant Attorney General,

10 Anthony C. Payne, Assistant Director,

11 Office of Immigration Litigation, on the

12 brief), United States Department of

13 Justice, Washington, D.C.

14

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

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

17 DECREED that the petition for review is DENIED.

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

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

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

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

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

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

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

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

26 two New York offenses that constitute crimes involving moral turpitude
3 

1 (“CIMTs”).    See 8 U.S.C. § 1227(a)(2)(A)(ii).    We defer to the BIA’s reasonable

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

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

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

5 Richards first argues that third‐degree assault, N.Y. Penal Law § 120.00(1),

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

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

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

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

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

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

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

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

14 Richards next argues that second‐degree menacing, N.Y. Penal Law   

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

16 contrary conclusion.    Richards’ argument that second‐degree menacing is a

 

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 

1 general intent crime misreads the statute, which requires “intentionally plac[ing]

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

17 Matter of Silva‐Trevino, 24 I. & N. Dec. 687 (A.G. 2008) (“Silva‐Trevino I”).    The

18 agency relied only on Silva‐Trevino I’s definition of a CIMT as “involv[ing] both

19 reprehensible conduct and some degree of scienter,” and the decision vacating
5 

1 Silva‐Trevino I expressly preserved this definition.    Matter of Silva‐Trevino, 26 I.

2 & N. Dec. 550, 553 n.3 (A.G. 2015); see also Matter of Silva‐Trevino, 26 I. & N. Dec.

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

4 We have considered Richards’ remaining arguments and conclude that

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

6 DENIED.

7 FOR THE COURT:   

8 Catherine O’Hagan Wolfe, Clerk