10-2307-ag 

Santana v. Holder

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

________________________

August Term 2012

(Submitted: February 21, 2013 Decided: April 22, 2013)

Docket No. 10-2307-ag 

 

________________________

CESAR MANUEL GOMEZ SANTANA, AKA CESAR M. GOMEZ, AKA MANNEL GOMEZ,

Petitioner,

v.

ERIC H. HOLDER, JR., UNITED STATES ATTORNEY GENERAL,

Respondent.

________________________

Before:

CHIN and DRONEY, Circuit Judges, and RESTANI, Judge.

*

________________________

Petition for review of an order of the Board of 

Immigration Appeals, affirming the decision of an 

Immigration Judge finding petitioner removable and 

 

* The Honorable Jane A. Restani, of the United States 

Court of International Trade, sitting by designation.
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ineligible for cancellation of removal on the basis that a 

conviction for attempted arson in the second degree under 

New York law is an "aggravated felony."

DISMISSED.

 

____________________________

Cesar Manuel Gomez Santana, pro se, 

Macclenny, Florida.

Holly M. Smith, Luis E. Perez, Senior 

Litigation Counsels, Office of 

Immigration Litigation, Tony 

West, Assistant Attorney 

General, Civil Division, United 

States Department of Justice, 

Washington, District of 

Columbia, for Respondent.

____________________________

 

CHIN, Circuit Judge:

Petitioner Cesar Manuel Gomez Santana was convicted 

in state court of attempted arson in the second degree in 

violation of New York law. In this case -- a petition for 

review of an order of the Board of Immigration Appeals 

("BIA") affirming a decision of an Immigration Judge finding 

Santana removable and ineligible for cancellation of removal 

-- the question is whether attempted arson in the second 
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degree is a "crime of violence" and therefore an "aggravated 

felony." We hold that it is, and, accordingly, we dismiss 

the petition for review.

STATEMENT OF THE CASE

A. The Facts

The facts are undisputed. Santana, a native and 

citizen of the Dominican Republic, entered the United States 

as a lawful permanent resident on October 4, 1968. In 1991, 

Santana was convicted, pursuant to a guilty plea, in the 

Supreme Court of the State of New York, New York County, of 

attempted arson in the second degree, in violation of New 

York Penal Law ("NYPL") §§ 150.15 and 110.00, and sentenced 

to a term of imprisonment of eighteen to fifty-four months. 

In 1999, Santana pled guilty in the Criminal Court of the 

City of New York, New York County, to criminal possession of 

a controlled substance (cocaine) in the seventh degree, in 

violation of NYPL § 220.03, and sentenced to a term of 

imprisonment of time served. 

In January 2007, Santana visited family in the 

Dominican Republic. When he returned to the United States 

on February 16, 2007 and applied for admission as a 
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returning lawful permanent resident, officers of the 

Department of Homeland Security determined that he was 

inadmissible to the United States by reason of his 

convictions. 

B. Proceedings Below

The Department of Homeland Security initiated 

removal proceedings by serving Santana, on January 18, 2008, 

with a Notice to Appear. The Notice to Appear charged 

Santana with removability as an alien who had been convicted 

of: (1) a crime of moral turpitude under

§ 212(a)(2)(A)(i)(I) of the Immigration and Nationality Act 

("INA") (attempted arson), and (2) a crime relating to a 

controlled substance under INA § 212(a)(2)(A)(i)(II) 

(possession of a controlled substance). 

On December 3, 2008, Immigration Judge Noel Brennan

found Santana removable based on the controlled substance 

conviction. On August 25, 2009, Immigration Judge Alan Page 

(the "IJ") found Santana removable based on the attempted

arson conviction. Santana applied for cancellation of 

removal. By decision dated January 6, 2010, the IJ denied 

Santana's application for cancellation of removal based on
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the arson conviction, concluding that attempted arson in the 

second degree is an "aggravated felony" as defined in the 

INA, rendering Santana statutorily ineligible for 

cancellation of removal. See INA § 240A(a). Accordingly, 

the IJ ordered Santana deported to the Dominican Republic. 

Santana appealed the IJ's decision to the BIA, 

arguing that attempted arson in the second degree under New 

York law is not an "aggravated felony" constituting a "crime 

of violence." By order dated May 19, 2010, the BIA agreed 

with the IJ's conclusion that Santana's conviction for 

attempted arson in the second degree was an "aggravated 

felony," and dismissed the appeal. 

Santana petitioned this Court for review of the 

BIA's order, and moved for a stay of removal pending the 

appeal. We denied the motion for a stay and dismissed the 

appeal except to the extent that Santana raised a question 

of law regarding whether his conviction for attempted arson 

in the second degree constituted an "aggravated felony." We 

now address the issue.
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DISCUSSION

A. Applicable Law

Although we lack jurisdiction to review final 

orders of removal against aliens convicted of an "aggravated 

felony," we have jurisdiction to review constitutional 

claims or questions of law, including whether a specific 

offense constitutes an "aggravated felony." See INA 

§ 242(a)(2)(C)-(D); Blake v. Gonzales, 481 F.3d 152, 155-56 

(2d Cir. 2007). Here, if Santana's conviction under NYPL 

§§ 150.15 and 110.00 is an "aggravated felony," we must 

dismiss the petition for lack of jurisdiction. Higgins v. 

Holder, 677 F.3d 97, 100 (2d Cir. 2012). 

While this Court gives substantial deference to the 

BIA's interpretation of the INA, a statute it is charged 

with administering, we review de novo its interpretation of 

state and federal criminal laws. See Dickson v. Ashcroft, 

346 F.3d 44, 48 (2d Cir. 2003). Because this petition for 

review involves the interpretation of 18 U.S.C. § 16 and 

NYPL §§ 150.15, 110.00, our review is de novo. 

The INA provides that "any alien convicted of . . . 

a crime involving moral turpitude . . . or an attempt . . . 
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to commit such a crime" is inadmissible to the United 

States. INA § 212(a)(2)(A)(i)(I). The Attorney General may 

cancel removal of an inadmissible alien in certain 

circumstances if the alien "has not been convicted of an 

aggravated felony." Id. § 240A(a). 

INA § 101(a)(43)(F) defines an "aggravated felony" 

to include "a crime of violence (as defined in section 16 of 

Title 18 . . .) for which the term of imprisonment [is] at 

least one year." An attempt to commit a "crime of violence" 

is also an "aggravated felony." Id. § 101(a)(43)(U).

Section 16 of Title 18 of the United States Code 

defines a "crime of violence" as:

(a) an offense that has as an element the use, 

attempted use, or threatened use of physical force 

against the person or property of another, or

(b) any other 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.

18 U.S.C. § 16. While § 16 uses the phrase "substantial 

risk" that physical force may be used, we have held that the 

use of physical force must be intentional. See VargasSarmiento v. U.S. Dep't of Justice, 448 F.3d 159, 169-70 (2d 
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Cir. 2006) (use of physical force contemplated by § 16

"refers to an intentional, rather than merely negligent or 

accidental, use of force"); Dalton v. Ashcroft, 257 F.3d 

200, 208 (2d Cir. 2001) (§ 16(b) "refers only to those 

offenses in which there is a substantial likelihood that the 

perpetrator will intentionally employ physical force"

(internal quotation marks omitted)).

We use a "categorical approach" to determine 

whether an offense is a "crime of violence" within the 

meaning of 18 U.S.C. § 16. Vargas-Sarmiento, 448 F.3d at 

166 (citation omitted). We "focus[] on the intrinsic nature 

of the offense . . . . [T]he singular circumstances of an 

individual petitioner's crimes should not be considered, and 

only the minimum criminal conduct necessary to sustain a 

conviction under a given statute is relevant." Dalton, 257 

F.3d at 204 (internal quotation marks omitted).

Under NYPL § 150.15, the elements of arson in the 

second degree are: (1) the defendant starts a fire, (2) 

with intent to damage a building; (3) he damages the 

building, (4) while another person is present in the

building; and (5) he knows or should know that the presence 
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of such a person in the building is a reasonable 

possibility. Payne v. Jones, 638 F. Supp. 669, 673 

(E.D.N.Y. 1986), aff'd, 812 F.2d 712 (2d Cir. 1987)

(unpublished order).

1 NYPL § 110.00 criminalizes attempts 

to commit a crime.

Attempted arson in the second degree is a class C 

felony, see N.Y. Penal Law §§ 110.05, 150.15, punishable by 

a term of imprisonment of not less than one year but not 

more than fifteen years, see id. § 70.00. "An offense is 

classified by federal law as a felony if 'the maximum term 

of imprisonment authorized' is more than one year." Blake, 

481 F.3d at 160 (quoting 18 U.S.C. § 3559(a)).

B. Application

Santana does not challenge the BIA's determination 

that he is removable as an inadmissible alien. Santana 

 

1 New York Penal Law ("NYPL") § 150.15 provides: 

A person is guilty of arson in the second degree 

when he intentionally damages a building or motor 

vehicle by starting a fire, and when (a) another 

person who is not a participant in the crime is 

present in such building or motor vehicle at the 

time, and (b) the defendant knows that fact or 

the circumstances are such as to render the 

presence of such a person therein a reasonable 

possibility.
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argues only that the BIA erred in holding that he was 

ineligible for cancellation of removal because arson is a

"crime of violence," and, thus, an "aggravated felony."

The parties agree that only subsection (b) of 18 

U.S.C. § 16 is at issue in this case. As there is no 

dispute that attempted arson in the second degree is a 

felony, the question before the Court is whether the 

offense, by its nature, involves a substantial risk of the 

intentional use of physical force against the person or 

property of another. See Blake, 481 F.3d at 156; VargasSarmiento, 448 F.3d at 160-70.

While we have not previously considered this issue, 

other circuits, considering other state laws, have held that 

arson is a "crime of violence." See, e.g., United States v. 

Velez-Alderete, 569 F.3d 541, 546 (5th Cir. 2009) (per 

curiam) (Texas law); Mbea v. Gonzales, 482 F.3d 276, 280 

(4th Cir. 2007) (District of Columbia law); United States v. 

Velasquez-Reyes, 427 F.3d 1227, 1231 (9th Cir. 2005) 

(Washington law); United States v. Schwartz, 235 F. App'x

914, 916-17 (3d Cir. 2007) (unpublished decision) 

(Pennsylvania law); United States v. Adams, 51 F. App'x 507, 
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508 (6th Cir. 2002) (unpublished decision) (Kentucky law). 

We reach a similar conclusion in this case with respect to 

the New York statute.

First, fire is a physical force. As the NYPL does 

not define "physical force," we supply the words with their 

ordinary meaning. See United States v. Desposito, 704 F.3d 

221, 226 (2d Cir. 2013). "Force" is defined broadly as 

"power, violence, or pressure directed against a person or 

thing." Dickson, 346 F.3d at 50 (quoting Chrzanoski v. 

Ashcroft, 327 F.3d 188, 192 (2d Cir. 2003); Black's Law 

Dictionary 656 (7th ed. 1999)). "Physical force" has also 

been defined as "an influence acting within the physical

world, a force of nature." Mbea, 482 F.3d at 280 (quotation 

omitted). "Fire is nothing if not a force of nature that 

exerts an influence within the physical world." Id.

(internal quotation marks omitted). Fire is physical force 

in the sense that it can impose "physical barriers of 

forcible restraint." Dickson, 346 F.3d at 49. Fire also 

has the power to destroy buildings or injure people. See In 

re Palacios-Pinera, 22 I. & N. Dec. 434, 437 (BIA 1998).
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Second, attempted arson in the second degree 

involves the intentional use of fire. A person is guilty of 

arson in the second degree when he "intentionally damages a 

building or motor vehicle by starting a fire." N.Y. Penal 

Law § 150.15 (emphasis added). The intentional use of 

physical force requires "active employment" of the force, 

Leocal v. Ashcroft, 543 U.S. 1, 9 (2004), and there can be 

no doubt that starting a fire with the intent to damage a 

building involves the "active employment" of fire in 

committing the offense. 

Third, attempted arson in the second degree 

involves a substantial risk that fire may be used against 

the person or property of another. NYPL § 150.15 requires 

that, at the time the defendant started a fire with the 

intent to damage a building, a person other than a 

participant in the crime was present in the building, and 

that the defendant knew or should have known that fact. See

N.Y. Penal Law § 150.15; Payne, 638 F. Supp. at 673. Thus, 

the offense will always involve a substantial risk that fire 

may be used against another, i.e., the person other than the 

defendant who is in the building at the time of the fire. 
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The fact that the other person is not actually injured is 

irrelevant, as § 16(b) "covers offenses that naturally 

involve a person acting in disregard of the risk that 

physical force might be used against another in committing 

an offense[;] . . . physical force need not actually be 

applied." Leocal, 543 U.S. at 10-11.

Santana argues that NYPL § 150.15 does not 

necessarily involve the use of fire against the "property of 

another," as arson in the second degree may be committed by 

a person setting fire to property he owns himself. See 

Shepherd v. People, 19 N.Y. 537, 542 (1859); People v. 

Rosen, 297 N.Y.S. 877, 880 (3d Dep't 1937). Damage to

property of another, however, is not required for purposes 

of § 16(b). Because NYPL § 150.15 always requires the 

presence of someone in the building, that presence creates a 

substantial risk in every case that physical force may be 

used against another. That the building is owned by the 

defendant does not alleviate the danger that fire will 

injure the persons inside or spread to nearby buildings. 

See, e.g., Salim v. Reno, No. CIV. A. 2000-CV-4603, 2000 WL 

33115910, at *2 (E.D. Pa. Jan. 16, 2001) (unpublished 
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decision) ("It matters little whether the property set 

ablaze belongs to the arsonist or another. Fires spread, 

endangering not only the arsonist's direct target but also 

nearby persons and property," as well as firefighters and 

emergency workers.); In re Palacios-Pinera, 22 I. & N. Dec. 

at 437 (starting fire always involves risk that fire will 

spread beyond originally intended property to another that 

may be occupied by other persons). 

Arson has been characterized in other contexts as 

involving "purposeful, violent, and aggressive conduct." 

Chambers v. United States, 555 U.S. 122, 128 (2009) (quoting 

Begay v. United States, 553 U.S. 137, 144-45 (2008))

(internal quotation marks omitted). The United States 

Sentencing Guidelines enumerates arson as a "crime of 

violence" warranting enhanced penalties. See U.S. 

Sentencing Guidelines Manual §§ 2L1.2(b)(1) cmt. 

n.1(B)(iii), 4B1.2(a)(2) (2012). Fire is a powerful weapon

-- easy to wield, capable of overwhelming destruction, and

difficult if not impossible to control. It would defy 

common sense to characterize arson as anything but a violent 

crime.
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Accordingly, we hold that attempted arson in the 

second degree under New York law is a felony that, by its 

nature, involves a substantial risk of the intentional use 

of physical force against the person or property of another. 

Hence, attempted arson in the second degree is a "crime of 

violence" under 18 U.S.C. § 16(b), and an "aggravated 

felony" under INA § 101(a)(43)(F), (U). Therefore, we lack 

jurisdiction over Santana's petition for review.

CONCLUSION

For the foregoing reasons, Santana's petition for 

review is DISMISSED.