19-2910

Singh v. Garland

BIA

Wright, IJ

A034 607 552

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

SUMMARY ORDER

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At a stated term of the United States Court of Appeals for 

the Second Circuit, held at the Thurgood Marshall United States 

Courthouse, 40 Foley Square, in the City of New York, on the 16th

day of November, two thousand twenty-two.

PRESENT:

REENA RAGGI,

JOSEPH F. BIANCO,

SARAH A. L. MERRIAM,

Circuit Judges.

_____________________________________

GORAKH NAUTH SINGH, AKA GORAKH N. 

SINGH, AKA GURAKH SINGH, AKA 

GORAKH O. SINGH, AKA GURAKA SINGH,

Petitioner,

v. 19-2910

MERRICK B. GARLAND, UNITED STATES

ATTORNEY GENERAL,

Respondent.

_____________________________________

FOR PETITIONER: H. Raymond Fasano, Esq., Youman, 

Madeo & Fasano, LLP, New York, NY.

FOR RESPONDENT: Ethan P. Davis, Acting Assistant 

Attorney General, Civil Division;

Anthony P. Nicastro, Assistant 

Director, Office of Immigration 
2

Litigation; Jenny C. Lee, Trial 

Attorney, Office of Immigration 

Litigation, United States Department 

of Justice, Washington, DC.

UPON DUE CONSIDERATION of this petition for review of a Board 

of Immigration Appeals (“BIA”) decision, it is hereby ORDERED, 

ADJUDGED, AND DECREED that the petition for review is DENIED.

Petitioner Gorakh Nauth Singh, a native and citizen of Guyana, 

seeks review of a decision of the BIA affirming a decision of an 

Immigration Judge (“IJ”) ordering Singh’s removal based on a prior 

aggravated felony conviction. In re Gorakh Nauth Singh, No. A034

607 552 (B.I.A. Aug. 12, 2019), aff’g No. A034 607 552 (Immig. Ct. 

N.Y.C. Jan. 23, 2018). We assume the parties’ familiarity with 

the underlying facts and procedural history.

We have reviewed the IJ’s decision as modified and 

supplemented by the BIA. See Xue Hong Yang v. U.S. Dep’t of Just., 

426 F.3d 520, 522 (2d Cir. 2005); Yan Chen v. Gonzales, 417 F.3d 

268, 271 (2d Cir. 2005). The sole issue before us is whether 

Singh’s conviction for attempted first-degree assault in violation 

of New York Penal Law (“NYPL”) §§ 110.00, 120.10(1) is a crime of 

violence under 8 U.S.C. § 1101(a)(43)(F). We review this question 

of law de novo. See Pierre v. Holder, 588 F.3d 767, 772 (2d Cir. 

2009).

The Immigration and Nationality Act includes in the 

definition of aggravated felony “a crime of violence . . . for 
3

which the term of imprisonment [is] at least one year,” 8 U.S.C. 

§ 1101(a)(43)(F), as well as an attempt to commit an aggravated 

felony, id. § 1101(a)(43)(U). Section 1101(a)(43)(F) defines a 

crime of violence by reference to 18 U.S.C. § 16, which in turn

defines a “crime of violence” as “an offense that has as an element 

the use, attempted use, or threatened use of physical force against 

the person or property of another.” 18 U.S.C. § 16(a). The “use 

of physical force” refers to intentional, rather than accidental, 

force and “suggests a category of violent, active crimes.” Leocal 

v. Ashcroft, 543 U.S. 1, 11 (2004);1 see also Johnson v. United 

States, 559 U.S. 133, 140 (2010) (holding that 18 U.S.C. § 924(e)’s 

nearly identical “physical force” clause “means violent force—that 

is, force capable of causing physical pain or injury to another 

person”). Accordingly, to constitute a crime of violence, a crime

must require violent force.

To determine whether a state conviction is for a crime of 

violence, we apply a categorical approach, looking to the elements 

of the state offense, not the facts underlying the crime. See

Morris v. Holder, 676 F.3d 309, 314 (2d Cir. 2012). We “‘presume 

that the conviction rested upon nothing more than the least of the 

1 See United States v. Scott, 990 F.3d 94, 119 (2d Cir. 2021) (en 

banc) (stating that Leocal’s reference to active crimes emphasized 

that use of physical force “must be more than accidental or 

negligent, not that it must involve the defendant’s physical 

movement”).
4

acts criminalized’ under the state statute.” Mellouli v. Lynch, 

575 U.S. 798, 805 (2015) (quoting Moncrieffe v. Holder, 569 U.S. 

184, 190-91 (2013)). 

Because NYPL § 120.10 has multiple, divisible subsections, we 

apply the modified categorical approach. See Singh v. Barr, 939 

F.3d 457, 462 (2d Cir. 2019). Here, Singh’s indictment tracks the 

language of NYPL § 120.10(1), and so we must consider whether that 

subsection’s elements are a categorical match to the definition in 

18 U.S.C. § 16(a). 

Under NYPL § 120.10(1), a “person is guilty of assault in the 

first degree when . . . [w]ith intent to cause serious physical 

injury to another person, he causes such injury to such person or 

to a third person by means of a deadly weapon or a dangerous 

instrument.” The elements of this statute are either 

indistinguishable from or require a greater showing of force than 

sub-sections (1) and (2) of New York’s second-degree assault 

statute, NYPL § 120.05, which we have previously ruled constitute 

crimes of violence under Section 16(a). See Thompson v. Garland, 

994 F.3d 109, 111–12 (2d Cir. 2021) (discussing NYPL § 120.05(1));

Singh, 939 F.3d at 462–64 (discussing NYPL § 120.05(2)).2 Because 

2 Under NYPL § 120.05(1), (2), a “person is guilty of assault in the 

second degree when (1) “[w]ith intent to cause serious physical injury 

to another person, he causes such injury to such person or to a third 

person;” or (2) “[w]ith intent to cause physical injury to another 

person, he causes such injury to such person or to a third person by 

means of a deadly weapon or a dangerous instrument.” 
5

NYPL § 120.10(1) contains the same intent and serious physical 

injury elements as NYPL § 120.05(1), and requires the same showing 

of intent to cause physical injury and use of a deadly weapon or 

dangerous instrument as NYPL § 120.05(2), NYPL § 120.10(1) is also

a crime of violence under Section 16(a)’s definition, and, 

therefore, an attempt to violate NYPL § 120.10(1) is an aggravated 

felony under § 1101(a)(43)(F), (U). 

Singh’s argument that NYPL § 120.10(1) is not a crime of 

violence because the statute does not use the words “physical 

force” fails because the intent to cause serious physical injury, 

particularly in combination with the deadly weapon or dangerous 

instrument element, necessarily encompasses the use of violent 

force required under Section 16(a). See Singh, 939 F.3d at 462 

(“[T]he deadly weapon or dangerous instrument element makes 

obvious that the statute requires the use of violent force.”). We 

have considered Singh’s remaining arguments and find them to be 

without merit. 

For the foregoing reasons, the petition for review is DENIED.

FOR THE COURT: 

Catherine O’Hagan Wolfe,

Clerk of Court