2012 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

11-6-2012

Lall Ramnauth v.;Attorney General United States

Precedential or Non-Precedential: Non-Precedential

Docket No. 12-1765

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PS3-009 NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

___________

No. 12-1765

___________

LALL B. RAMNAUTH,

 Petitioner

v.

ATTORNEY GENERAL UNITED STATES OF AMERICA

____________________________________

Petition for Review of an Order of the

Board of Immigration Appeals

(Agency No. A037-139-420)

Immigration Judge: Honorable Leo A. Finston

____________________________________

Submitted Pursuant to Third Circuit LAR 34.1(a)

November 5, 2012

Before: RENDELL, FISHER and GARTH, Circuit Judges

(Opinion filed: November 6, 2012)

___________

OPINION OF THE COURT

___________

PER CURIAM

Lall B. Ramnauth, a native and citizen of Guyana, was admitted to the United 

States in 1983 as a lawful permanent resident. In 1995, Ramnauth was convicted of

arson in violation of N.J. Stat. Ann. § 2C:17-1(b). In 2003, he was convicted for 
2

aggravated assault in violation of N.J. Stat. Ann. § 2C:12-1(b)(1) and possession of a 

weapon other than a firearm for an unlawful purpose in violation of N.J. Stat. Ann. 

§ 2C:39-4(d). The latter convictions stem from a 2002 incident in which Ramnauth

apparently struck another man in the head with a wooden board. A.R. 345, 359-62. He

was sentenced to seven years’ imprisonment for the aggravated assault conviction and a 

concurrent term of four years’ imprisonment for the weapons possession conviction. In 

2010, he was served with a Notice to Appear charging him with removability as an alien 

convicted of an aggravated felony pursuant to 8 U.S.C. § 1227(a)(2)(A)(iii), and for 

having committed two or more crimes involving moral turpitude pursuant to

§ 1227(a)(2)(A)(ii).

Ramnauth applied for asylum, withholding of removal, and protection under the 

Convention Against Torture. An Immigration Judge (“IJ”) determined that he was 

removable as charged and found that he was statutorily ineligible for asylum because his 

conviction for possession of a weapon is an aggravated felony.

1

 See

 1 Ramnauth has raised no challenge to the denials of withholding of removal and

protection under the Convention Against Torture; accordingly, he has waived judicial 

review of these issues. See Laborers’ Int’l Union of N. Am. v. Foster Wheeler Corp., 26 

F.3d 375, 398 (3d Cir. 1994) (holding that an issue is waived unless party raises it in 

opening brief). In any event, Ramnauth did not raise the issues on appeal to the BIA. 

Accordingly, irrespective of their waiver, they are unexhausted and beyond our 

jurisdiction. See Hoxha v. Holder, 559 F.3d 157, 159 n.3 (3d Cir. 2009).

8 U.S.C. 

§ 1101(a)(43)(F) (defining aggravated felony as an offense constituting a “crime of 

violence” under 18 U.S.C. § 16 for which the term of imprisonment was at least one 

year). The Board of Immigration Appeals (“BIA”) agreed with the IJ’s aggravated felony 
3

analysis, rejected Ramnauth’s arguments, and dismissed his appeal. Ramnauth petitions 

for review. 

Because he is a criminal alien, this Court has jurisdiction to review Ramnauth’s 

petition only to the extent he raises constitutional claims or questions of law. See 8 

U.S.C. § 1252(a)(2)(C)-(D); Henry v. Bureau of Immig. & Customs Enforcement, 493 

F.3d 303, 306 (3d Cir. 2007). Whether Ramnauth’s weapons possession conviction 

constitutes an aggravated felony—the only issue raised before this Court—is a question 

of law over which our review is plenary. See Henry

Ramnauth was charged with and convicted of violating N.J. Stat. Ann. § 2C:39-

4(d), which reads in its entirety: “Any person who has in his possession any weapon, 

except a firearm, with a purpose to use it unlawfully against the person or property of 

another is guilty of a crime of the third degree.” Ramnauth argues that his conviction 

under § 2C:39-4(d) does not constitute an aggravated felony because a violation of that 

provision is not a crime of violence as it does not necessarily involve a substantial risk 

that the violator will intentionally use physical force. This argument is without merit. 

, 493 F.3d at 306.

Under 18 U.S.C. § 16(b), “a crime of violence” is defined as an 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.” A

conviction under § 2C:39-4(d) expressly requires not only that the defendant possess a 

weapon, but that he or she intend or have “a purpose” to use it unlawfully against the 

person or property of another. See e.g., State v. Villar, 696 A.2d 674, 677 (N.J. 1997)
4

(affirming a conviction under § 2C:39-4(d) where defendant possessed a beer stein and 

used it to strike the victim). Ramnauth’s conviction was therefore predicated on his 

intent to use the weapon in his possession; accordingly, his crime involved a substantial 

risk of the use of physical force against the person or property of another and, under the 

settled law of this Circuit, constituted a “crime of violence.” See Henry, 493 F.3d at

308–10 (explaining that “certainly if someone intends to use physical force there is a 

substantial risk that physical force may be used” and concluding that “possession of a 

weapon with intent to use the same unlawfully against another [under a New York 

Statute] is a crime of violence within the meaning of § 16(b)”); see also Aguilar v. Att’y 

Gen., 663 F.3d 692, 699 (3d Cir. 2011) (holding that offenses that “raise a substantial risk 

that the perpetrator will resort to intentional physical force in the course of committing 

the crime” qualify as crimes of violence under § 16(b)); cf. United States v. Hull, 456 

F.3d 133, 140 (3d Cir. 2006) (holding that “mere possession of a pipe bomb holds no risk 

of the intentional use of force”). In short, because Ramnauth’s offense was a crime of 

violence for which he was sentenced for more than one year’s imprisonment, the BIA 

correctly determined that he is an aggravated felon.2

 See

Ramnauth alternatively claims that the BIA erred by applying the formal 

categorical approach to determine whether his conviction constituted a crime of violence. 

8 U.S.C. § 1101(a)(43)(F).

 2 Ramnauth argues that the BIA’s reliance on cases involving the possession of different 

sorts of weapons was error. However, because a conviction for possession of any

weapon with the intent to use it unlawfully against another involves a substantial risk of 

the intentional use of physical force, it is of no moment whether the weapon involved is a 

gun, a knife, or, as here, a wooden board. 
5

Although N.J. Stat. Ann. § 2C:39-4 is comprised of several subsections, Ramnauth was 

specifically charged with and convicted of violating only subsection (d). See A.R. at 

359-62. That provision is not divisible, and, as explained above, the only conduct it 

proscribes qualifies as a crime of violence. Accordingly, the BIA did not err in applying 

the formal categorical approach. See Aguilar

We have considered Ramnauth’s remaining arguments and conclude that they are 

either waived or without merit. For the foregoing reasons, we will deny the petition for 

review. 

, 663 F.3d at 695 n.6.